090327ED

Page 6455

1 If we go site by site, I believe we were at Pionirska yesterday.

2 A. Yes.

3 Q. So let's just start back with what were you looking for at

4 Pionirska that you thought should be included in an investigative report?

5 A. The evidence we were looking for would be -- would be anything

6 that would either prove or disprove that a fire or explosion was obvious

7 to a trained eye once we had a chance to examine the scene and the

8 evidence that was there.

9 Q. We had just discussed cross-contamination and a couple of things

10 that could affect the reliability of evidence due to time. There were

11 some other things you had mentioned in your report that could affect the

12 evidence that could be collected at this time.

13 MS. O'LEARY: And if we could call up 1D22-0696. It's the photo

14 index that was an addendum to your report. Page 3, please. That's

15 actually the report. I'm looking for the addendum, which is 1D22-0696.

16 Q. While we look for the actual photograph, can you tell us other

17 factors that you encountered at the site that would affect any evidence

18 that would be collected to this stage?

19 A. Well, I found the general condition of the crime scene had

20 degraded to the point where any valuable evidence that might be collected

21 had probably reached the point where it was either totally destroyed or

22 almost to that point. The crime scene was not in good shape at all.

23 Q. What elemental factors did you take into consideration?

24 A. Well, there appears to be -- of course, when we were there it was

25 raining that weekend, and that room is obviously subjected to a large

Page 6456

1 amount of water. The floors are muddy. The walls have almost

2 deteriorated to the point where I would not want to go back in there for

3 an extended period of time and conduct a search for fear that the

4 building is about to collapse. I would want -- before we went in and did

5 an extensive examination of the floor area of Pionirska, I would want an

6 engineer to go in and ensure me that that building was safe enough that

7 we could conduct that search.

8 JUDGE ROBINSON: How does that affect any item of evidence that

9 you know the Prosecution would have relied on to prove its case?

10 THE WITNESS: Well, the problem with that, Your Honour, is that

11 that moisture has a tendency, for example, to wash the walls. It caused

12 the concrete along the side of the walls to degenerate, and I think when

13 we get the photo array or the photos up, you'll see that it's to the

14 point where if you were to take your index finger and brush along the

15 wall, the concrete disintegrates against your finger. That's how

16 degraded that concrete is, and it's due to the water washing away the

17 minerals in the concrete. How it affects the evidence is, say for

18 example there is a fire, and there's going to be smoke residue along the

19 walls, well, when the walls degenerate to that point, that evidence is

20 lost.

21 JUDGE ROBINSON: Yes.

22 MS. MARCUS: Sorry to interrupt you, Mr. Jenkins. Your Honours,

23 the counsel has not laid a foundation for this witness to give any

24 evidence as to fire and explosives and the residue of fire or anything of

25 the kind. The question Your Honour has asked obviously about the site

Page 6457

1 and the destruction of evidence perhaps falls in his purview, but I would

2 object to any -- to -- without a foundation being laid, to this expert

3 being asked questions as to relating to the cause of the fire, the origin

4 of the fire.

5 JUDGE ROBINSON: I don't see why he shouldn't answer the question

6 that I have asked.

7 Please answer the question. Please continue.

8 MS. O'LEARY: And we found the document, and I'm sorry about

9 that. It's 1D22-0705. It should be there at page 3, what we're

10 discussing about.

11 JUDGE ROBINSON: Yes. Continue with the explanation.

12 THE WITNESS: The -- in answer to counsellor's question, I'm

13 really not interested in how the fire started. I'm merely speaking of

14 the residue that would be left behind if such an event had taken place.

15 And it could have been hypothetically, say there was someone building a

16 pipe bomb, and the pipe bomb exploded, killing the individual that was

17 building the bomb. There would be residue on the wall from that crime

18 scene as well. And if it were in this situation and the wall

19 degenerated, over a period of time that evidence would be lost on the

20 floor. I hope that makes sense for you.

21 JUDGE ROBINSON: Okay. Yes, Ms. O'Leary.

22 MS. O'LEARY:

23 Q. We have the pictures on the screen. We're referring to the top

24 picture, which is listed as number 879. Can you tell us in that

25 photograph what you're describing.

Page 6458

1 A. Yes. This is a photograph of the south-east wall of the basement

2 area of the alleged crime scene, and if the Tribunal will notice, in the

3 upper right-hand corner there's a sort of green tint. That is mold that

4 has attached itself to the wall, and the area that's to the centre and

5 slightly down and to the right, you can see the white areas there in the

6 centre. That is part of the wall that has fallen away, and I actually

7 took my finger as I described before and brushed that wall below the area

8 where that mold is, and the wall disintegrated against my finger, much

9 like -- it's just degenerated to the point where it's very unstable.

10 Q. And when was this photograph --

11 JUDGE ROBINSON: Just a minute. The LiveNote, as you have

12 indicated, is not working and I would like the technicians to attend to

13 that as quickly as possible.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Thanks.

16 MS. O'LEARY: Shall I continue, Your Honour?

17 JUDGE ROBINSON: Yes.

18 MS. O'LEARY: Thank you.

19 Q. When was this photograph taken?

20 A. This photograph was taken on 29 January of '09.

21 Q. And who took this photograph?

22 A. I took this photograph.

23 Q. And when would this start to affect the scene? How long into

24 after the actual events would it start to decompose in this manner that

25 you've described?

Page 6459

1 A. I really can't say because it depends on how secure the roof was

2 and for what period of time leading up to our visit at the scene, so

3 without -- you know, there's really no way to answer that with any

4 surety.

5 Q. How much will it continue to deteriorate over time?

6 A. Well, the way it is right now, as I indicated earlier, if it

7 continues deteriorating at this current rate, it won't take too much

8 longer and these walls will give way, and the entire building will

9 collapse.

10 MS. O'LEARY: Now, Your Honour, I'm not sure how you want to deal

11 with reports. My understanding was you wanted to have them taken at the

12 end as far as admission, but perhaps we could mark for identification

13 this photograph alone, since we've referred to it in the testimony.

14 JUDGE ROBINSON: Very well, yes.

15 MS. O'LEARY: Thank you, Your Honour.

16 And if we could have 65 ter 18 on the screen, please.

17 Q. How much time did you spend at the Pionirska site on your site

18 visit?

19 A. I actually visited the site on two consecutive days. On the

20 morning of the 29th we were there, I would say, an hour and a half, maybe

21 two hours; and on the second day, I asked if we could revisit the scene.

22 I just wanted to revisit the site because I had a couple of questions in

23 my own mind about things that I'd seen the day before, and I asked if we

24 could revisit the site for a short period, and we were there maybe half

25 an hour the second day.

Page 6460

1 Q. Okay. And if you look at the screen now, you'll see an aerial

2 shot. Do you know what this photograph is?

3 A. This is an aerial photograph of the area around the Pionirska

4 scene.

5 Q. And can you mark where you went for your Pionirska visit, with

6 the court usher's assistance, please.

7 A. Yes. The scene, the Pionirska fire is here.

8 Q. What other areas did you have -- actually, could you put a P by

9 it for indicating that that is the Pionirska scene, please. Thank you.

10 A. [Marks]

11 Q. Could you tell us what other areas that you had opportunity to

12 look at in this neighborhood?

13 A. Yes. We also had -- from review of the documents, we had

14 information about one of the witnesses that was located on a balcony

15 approximately here. I'll mark that with a W, if that's okay.

16 Q. Perfect.

17 A. And the question was presented whether or not the witness from

18 this location could see the scene as reported in her statement.

19 Q. Thank you. And what else can you tell us generally about the

20 neighborhood?

21 A. Is there -- can I have a clear screen?

22 Q. We can --

23 MS. O'LEARY: Can I tender this marked exhibit, Your Honour.

24 JUDGE ROBINSON: Yes.

25 THE REGISTRAR: Exhibit 1D209, Your Honours.

Page 6461

1 MS. O'LEARY: And then if the court usher could bring up a blank

2 screen, please. A blank screen.

3 THE WITNESS: While we're waiting for the blank screen, perhaps I

4 can explain what my intentions are --

5 MS. O'LEARY:

6 Q. With the blank screen.

7 A. -- with the blank screen.

8 Q. Please.

9 A. And by blank screen, I need to -- I need to be able to sketch, so

10 I need to have this photograph removed and --

11 Q. They're saving it.

12 A. Okay.

13 Q. While we're talking about that, or while we're waiting on that,

14 can you tell us just a general indication of what type of a neighborhood

15 is it, what is it --

16 A. Generally speaking, the neighborhood of the Pionirska scene is

17 located on the side of a hill. And the area to the north of the

18 Pionirska scene, which is the area across the flood channel or the ditch,

19 there are several houses that are located along that hill to the north

20 that are approximately 3 to 5 metres higher than the Pionirska building,

21 the home where the incident took place. That slope, actually at that

22 point it sort of rises. There's a ridge or a saddle that runs right down

23 next to the home, and then it continues to slope down towards the village

24 of Visegrad. So it is -- if you were to look at it, if -- I'm going to

25 do this backwards so it will give you some context to the Tribunal. But

Page 6462

1 the homes above Pionirska would be here; there's a flood channel that

2 runs immediately adjacent to the home on Pionirska, the Pionirska scene;

3 then we have the home. Then there's the other bank of the flood control

4 channel, and then there's a slight saddle or a hump that runs right along

5 with those homes that we'll see here in a moment. Then it continues to

6 fall off to the -- it would be to the south, the south-west.

7 Q. Thank you. I'm not sure if we're -- okay, thank you. I believe

8 you're free to mark on the screen now to indicate what you've just spoken

9 about.

10 A. Okay. And I beg your forgiveness, I'm not a very good artist,

11 so -- if we're to look at the area, first of all, this is the flood

12 control ditch, and for the sake of argument, let's put the scene here.

13 This would be the Pionirska scene. So this is the ditch, water flowing

14 in this direction. This bank is, say, 3 to 5 metres higher than this

15 bank. There is a parking-lot or some sort of large driveway, patio area

16 here, and the road that you've seen on the photographs runs like this.

17 There is a road, a back road that runs here. There is a house here that

18 is marked this way. That's supposed to be like a backwards 7. Then

19 there is another home that extends almost all the way to the road, and

20 then there's the balcony, and this is approximately the location where

21 the witness was.

22 Now, if we were to look at this in cross-section, what you would

23 see is you would see the ditch coming down. Then there's the house with

24 a slight hump, and then it falls back off to where these houses are

25 located. So there's actually a small ridge that runs. So if you were to

Page 6463

1 take your GPS unit, and most of the modern units will give you not only

2 the latitude and longitude but also your altitude above sea level, if you

3 were to shoot that, and I don't know exactly what the altitude is, but

4 for the sake, again, of argument, let's just say that this is 1.000 feet,

5 if you were to take the reading at the top of the parking area, it might

6 say 1.003 feet. Back over here, it might say 1.000 feet again. So

7 there's actually some obstruction because of the way the hill, that

8 saddle comes through. If you're standing at ground level, you cannot see

9 over that hump to what is happening in Pionirska at the crime scene.

10 Q. How does that affect your take on this scene as an investigator?

11 A. Well, what it tells me is if -- even if there's a witness

12 standing in close proximity, say to within even -- I would say within

13 15 metres of this ditch bank, you cannot see down into the entrance to

14 that room. You have to physically get almost up to the edge of that bank

15 to look down the hill to see what is in the -- what's going on at the

16 scene. And again, I apologise for this chicken scratch. It's not very

17 good.

18 MS. O'LEARY: Your Honour, I would move to admit this diagram.

19 JUDGE ROBINSON: Yes.

20 MS. O'LEARY: Thank you.

21 THE REGISTRAR: Exhibit 1D210, Your Honours.

22 MS. O'LEARY: If we could call back up the addendum we just had,

23 1D22-0705, and go to page 7 this time, please.

24 Q. Now, in relation to -- you did have access to where the witness

25 had said she was on the evening of the Pionirska fire.

Page 6464

1 A. Yes.

2 Q. What can you tell us about that location?

3 A. It's a two-storey building. It is, I would say, 250 to --

4 approximately 250 metres from the scene. But what is of note is that the

5 house -- the neighbor's house totally obstructs the direct line of sight

6 to the Pionirska scene, and in addition to that there's a 3-storey

7 building on the other side of the main street that would also obstruct

8 the view of the witness from her reported location.

9 MS. O'LEARY: And if we could go to the bottom photograph on that

10 page, 894.

11 Q. Can you tell us what this picture is?

12 A. Yes. This is a photograph of the balcony area that the witness

13 was standing on.

14 Q. And when was this taken?

15 A. This was taken on 29 January of '09.

16 Q. Who took this photograph?

17 A. I took this photograph.

18 Q. What can you see from this photograph in relation to the

19 Pionirska incident?

20 A. I'm sorry? Say again?

21 Q. What can we see in this photograph in relation to the Pionirska

22 incident?

23 A. The balcony that you see above the area that is coloured in kind

24 of a yellow colour, that is the balcony area from which the witness is

25 report to have been standing. If you look to the left, you can see the

Page 6465

1 next-door residence and how that wall extends beyond parallel with the

2 witness's back wall and thus obstructing any views back towards the

3 scene.

4 JUDGE VAN DEN WYNGAERT: May I ask a question? I'm sorry, but

5 did the witness say she saw the fire or only the smoke?

6 THE WITNESS: I believe she said she saw the fire.

7 JUDGE VAN DEN WYNGAERT: My recollection of what she said here in

8 court was that she only saw the smoke.

9 MS. O'LEARY: Thank you, Your Honour. And we'd get to what she

10 was available to see from that location as we progress. It might help to

11 go to page 9, the bottom picture there.

12 Q. And what are we seeing in this photograph here?

13 A. This photograph was taken from the balcony of the residence that

14 was occupied by VG-115. This would be an accurate representation of what

15 she was able to see from her balcony.

16 Q. What views did she have from that point from that balcony?

17 A. I'm sorry?

18 Q. What views did she have from that balcony?

19 A. She has a view of the flood-control channel somewhere

20 approximately 50 to 65 metres further to the west, so there is no direct

21 line of sight with the scene.

22 Q. On the evening of Pionirska, what could she see?

23 A. It would depend on the weather conditions that were present at

24 the time. If it were rainy or foggy, there could be some ambient light

25 that would be reflected from a fire or, you know, similar incident that

Page 6466

1 could be seen that far down the channel. But as far as any actual

2 activity at the scene, you couldn't see from this location.

3 Q. And to follow up with Your Honour's question, what about smoke?

4 Could she have seen smoke from here?

5 A. Again, it's possible, depending on the wind. Certainly if smoke

6 were to drift down the canyon that way, it could also reflect the light.

7 Those are both possibilities.

8 Q. Thank you.

9 MS. O'LEARY: And, Your Honour, I'd like to mark for

10 identification these two photos as well.

11 JUDGE ROBINSON: Yes.

12 THE REGISTRAR: Exhibit 1D211, marked for identification,

13 Your Honours.

14 MS. O'LEARY: And if we could call up 65 ter 178.59. And

15 Your Honours, for transcript reference as far as VG-115's testimony, it

16 does say -- it's in the question from the Prosecutor, actually, but it

17 says: "Which house was torched where you saw the smoke coming from the

18 fire and the flames which you saw?" And she says -- on the screen she

19 marks the photograph so --

20 THE INTERPRETER: Would the counsel kindly speak into the

21 microphone.

22 MS. O'LEARY:

23 Q. Can you tell us what this photograph is, Mr. Jenkins.

24 A. This is an aerial photograph of the scene at the Pionirska fire.

25 Q. What can you tell us about this photograph that's important to an

Page 6467

1 investigation?

2 JUDGE VAN DEN WYNGAERT: Excuse me, counsel. May I interrupt

3 you. I seem to remember that this little confusion was caused by a

4 question that was asked and not by what the witness said genuinely,

5 because the question was which house was torched, and then she made a

6 marking. It's not that she out of her own initiative said that she had

7 seen the fire, so --

8 MS. O'LEARY: Right. And that's --

9 JUDGE VAN DEN WYNGAERT: And I think it may have been brought by

10 that confusion and not the way you were saying it just now.

11 MS. O'LEARY: You're absolutely right, and that's why I wanted to

12 quote that directly. It was in the question, so I'm not exactly sure.

13 Thank you, Your Honour.

14 Q. Now, in this house, what would be important to you to look at as

15 an investigator?

16 A. The shrubberies, the surrounding out-buildings also play a role

17 into the ability of the witness to see any of the activity at the scene.

18 Q. And what did you notice -- what did you notice of the shrubbery?

19 A. Well, on our visit the shrubbery was no longer there. It's

20 pretty much been cleaned out, as have those -- at least that one

21 out-building that is directly next to the home. Those -- that building

22 is no longer there, and the shrubs and trees are no longer there.

23 Q. So step by step, as an investigator, how would you process this

24 scene?

25 A. In this condition?

Page 6468

1 Q. Today, as you saw it on the site visit.

2 A. The scene would be processed much in the same way -- the same way

3 that we discussed yesterday. There would be a diagram of the scene

4 drawn; evidence visually identified that we want to collect. There would

5 be still photographs taken with a scale next to the items so we have an

6 accurate measurement of the items that we're talking about or the items

7 that we're going to take into evidence. And once everything is

8 photographed and measured and the measurements of the room are

9 memorialised on a sketch, then we would begin a systematic process of

10 collecting that evidence.

11 Q. Why --

12 JUDGE ROBINSON: My main interest is how does all of this, all of

13 these shortcomings affect the Prosecution case, because we're not

14 conducting an investigation into the Prosecution's investigative

15 techniques.

16 MS. O'LEARY: Thank you, Your Honour. My next --

17 JUDGE ROBINSON: It's not a university seminar, you know. I want

18 to know how it affects the case that the Prosecution has presented.

19 That's how Mr. Lukic will benefit from this witness's evidence.

20 MS. O'LEARY: Thank you, Your Honour.

21 JUDGE ROBINSON: If you can show me that the failure on the part

22 of the Prosecution in collecting particular items of evidence renders the

23 case less credible, less reliable. It's not a -- I don't want to hear a

24 general theory about how the investigation should be conducted, although

25 of course the Chamber might have something to say about that in its

Page 6469

1 judgement ultimately, but that's not really the main purpose.

2 MS. O'LEARY: Thank you, Your Honour.

3 Q. My next question, then, and I hope this answers your question,

4 but why does it matter in this incident that these steps had been taken?

5 A. Well, simply because as soon as practical, the investigator

6 should have taken this evidence to prevent it from being further

7 destroyed, and we have no idea what evidence was there, whether it would

8 benefit either the Prosecution or the Defence. We have no idea.

9 Q. What evidence in this case could still be collected today?

10 A. There's a possibility that there are bone fragments in the dirt.

11 There's a possibility that there are bullets or bullet fragments in the

12 dirt. Potentially, there could be -- there could be documents. There

13 could be clothing. There could be some things in the soil that would

14 help identify any of the victims if there were any. It would help

15 establish that in fact there was a fire.

16 Q. Why don't we have these materials right now?

17 A. I'm sorry, why don't we have?

18 Q. Why don't we have these materials?

19 A. I don't know. I don't know.

20 Q. What effect does it have on an overall investigation to not have

21 these materials?

22 A. Well, it speaks directly to whether or not the crime even

23 occurred. If there's no evidence, no bodies, it's difficult to make that

24 assertion and carry it forward.

25 MS. O'LEARY: And I think we can move on then to Bikavac, which

Page 6470

1 if we call up 1D00-0021.

2 Q. What can you tell -- how much time did you spend at the Bikavac

3 scene?

4 A. We spent, I would say, 45 minutes to an hour there. That

5 particular crime scene is open, and it has degenerated to the point where

6 there really wasn't much for us to do.

7 Q. What can you tell us about the scene as you saw it in January, I

8 believe?

9 A. The scene at this point is really nothing more than a

10 neighborhood garbage dump.

11 Q. How does that affect an investigation?

12 A. Well, any evidence that may be left behind is buried beneath

13 several inches of trash. It would take a considerable effort to unearth.

14 Q. Before we get into that, can you quickly mark on the map here

15 where you were looking as the Bikavac incident scene.

16 A. It's approximately where this X is, as near as I can tell. I

17 believe it's right in this area.

18 Q. Thank you. What can you tell us about this terrain?

19 A. Well, this photograph is somewhat deceiving. From this aerial

20 photograph, it looks like it's a nice meadow, but in fact it's located on

21 the side of a hill that I would estimate it probably a 6- to 7-degree

22 incline.

23 Q. How does that affect an investigation?

24 A. As far as the forensic side of it, it wouldn't affect it at all.

25 From the prospect of the witnesses, it may or may not be relevant

Page 6471

1 depending -- you know, the witness was severely burned and was running

2 around, you know, that area, and that's -- I won't say it's impossible to

3 run up and down those hills, but it would -- it's pretty steep.

4 Q. And what can you tell us about these roads?

5 A. They're very narrow. The road -- you really can't even see a

6 road. There's actually a road that leads back into this scene, that cuts

7 back in here, and then there's another road -- at least the way the scene

8 is now, there's another road like this, and two cars on this road could

9 not pass each other, and this road also dead-ends here. There's a

10 T-intersection here, and up in this area, it seems like the road services

11 these house, but I could not observe the road going any further up the

12 hill.

13 Q. Thank you.

14 A. And by the way, this road is hardly categorised as a road, this

15 particular road right here. It is really more of a trail. It is a -- it

16 almost looks like a rutted access road. It's very -- very narrow.

17 Q. Can you give any indication of what is the distance between the

18 house you've indicated as the main road that's moving sort of diagonally?

19 A. From the scene back -- from the scene here back to this road is

20 probably 10 metres, 15 metres.

21 Q. And how much is the distance from the scene to the main road

22 that's running diagonally?

23 A. Probably 50 metres.

24 Q. From the juncture at that main road there?

25 A. From here --

Page 6472

1 Q. If you could indicate --

2 A. From here to here, I would estimate just an estimation of about

3 50 metres.

4 Q. Thank you.

5 A. Let me see. I could be in error. That could actually be a

6 little bit further. If I were to convert the -- and I'm sorry, but I'm

7 not used to working in metres, but I would estimate, if the Tribunal will

8 indulge me, in feet, I would say that would be somewhere in the area of

9 350 to 400 feet back to the main road, and I'm sorry I'm not quick enough

10 to do the conversion.

11 Q. Thank you, Mr. Jenkins.

12 JUDGE ROBINSON: I have the same deficiency.

13 MS. O'LEARY: Your Honour, if we could tender that map, please.

14 JUDGE ROBINSON: Yes.

15 MS. O'LEARY: Thank you.

16 THE REGISTRAR: Exhibit 1D212, Your Honours.

17 MS. O'LEARY: And if we could call up 65 ter 178.67.

18 Q. Would it be -- going back to this, too, while it's being taken

19 off the screen, from that distance would it be possible to see the house

20 from the main road?

21 A. You know, I'm not sure. I don't know.

22 Q. Thank you. And this next photograph on this scene -- can you

23 tell us what it is?

24 A. This is an old photograph of the crime scene.

25 MS. O'LEARY: And, Your Honours, if we may, I have a blown-up

Page 6473

1 photograph that's significantly lightened that we might refer to. If I

2 could put it on the ELMO.

3 Q. Do you know who took this photograph?

4 A. The one that's on the screen?

5 Q. Yes.

6 A. I do not.

7 Q. And do you know when it was taken?

8 A. I do not know.

9 Q. Would you have any guess about it?

10 A. I believe it was taken around 2001, but I'm not sure.

11 Q. Why would you guess 2001?

12 A. Because to the best of my knowledge, that was the first time the

13 investigators entered that area.

14 Q. Now, looking at this photograph, and we have on the ELMO the same

15 photograph, what is the photograph on the ELMO?

16 A. The photograph on the ELMO is a copy that I made in my office

17 using a programme called Picasa, which is a -- an addition to the Google

18 programme, and basically all it is is a photo-editing software similar to

19 what you would find in any of -- you know, any of the software packages

20 that are available now.

21 Q. Why did you make that photograph?

22 A. Well, I was interested to see what the building on the lower

23 left-hand corner of the photograph would reveal. From the photograph

24 that was taken, it's very dark, and you really can't see much detail in

25 that structure.

Page 6474

1 Q. What did you see when you lightened the photograph?

2 A. There's a -- it appears to be a garage of some sort that was

3 constructed on part of the Bikavac scene, and you can see the tail of a

4 blue vehicle parked inside that garage, and then it's covered with some

5 sort of a cloth. But what's of interest to me in this photograph is the

6 position of this garage on the crime scene.

7 Q. Why?

8 A. Well, it is actually located almost in the centre of the

9 property, and through observation if you'll notice where -- the area

10 where the soldier is standing, you can see where the car has traveled in

11 and out of that garage and has killed all of the vegetation as the

12 vehicle's gone back and forth. There's no growth there, which tells me

13 that that building has been there for some time.

14 Q. Did you have the opportunity to see that building when you were

15 at the site visit?

16 A. We did not.

17 Q. What information do you have about when that building was built?

18 A. I have no information at all.

19 Q. What information do you have about when that building would have

20 been destroyed?

21 A. I have no information on that at all.

22 Q. And what can you tell us as far as an investigator --

23 investigator's eye goes, when you went to the scene, what did you notice?

24 A. Well, the area has been cleaned of this building, obviously, and

25 the -- apparently the neighborhood has continued to use this area as a

Page 6475

1 trash dump. You can see to the soldier's right the beginnings of that

2 pile. I mean, it's got diapers and milk bottles and orange peels and,

3 you know, egg shells and everything. It's just a dump.

4 Q. Where would the foot-print of the Bikavac house be?

5 A. There are actually two possibilities to the foot-print of the

6 house, and one of them -- I'm sorry. I'm sorry. I thought I had the pen

7 on. This line is actually what appears to be a stem wall for some part

8 of a structure, and -- forgive me, this is kind of an odd angle for me to

9 work, but the other part of the stem wall is here, and there's also a

10 stem wall or foundation that runs here, and then a join, if that were a

11 straight line, like that. So maximum size would be to this line; the

12 minimum size would be to this line. The outside wall is here.

13 Approximately 1 metre to the inside, closer to that building, there is a

14 retaining wall that runs here that separates this property from this

15 property. That retaining wall is not even a metre high, but it is --

16 because of the slope of the hill, in order to level that foundation they

17 had to build a wall, build that up and flatten that area out so that they

18 could construct a level structure.

19 Q. So looking at it from an investigation point of view, what steps

20 should have been taken with this scene?

21 A. Again, it really depends on what we decide to do. If the

22 building -- if this building, this garage area is gone, what we want to

23 do, since this is primarily an archaeological dig at this point, we would

24 want to come in, grid this area off, and we would search each one of

25 these quadrants, taking the earth down as far as necessary, and we would

Page 6476

1 be searching for the same things we discussed a moment ago. We'd be

2 looking for hair, bones, documents, anything that would help identify

3 what actually took place.

4 JUDGE ROBINSON: Does the failure of the investigators to do that

5 in any way affect the reliability of the evidence that would have been

6 presented in relation to that site?

7 THE WITNESS: Well, the problem is, Your Honour, we don't know

8 what the evidence would have been presented because the evidence has

9 never been collected. If we were talking about simply evidence that had

10 been collected and mishandled, that would be one issue; but the failure

11 to collect the evidence, we have no way of knowing what is there. And

12 again, that speaks directly to whether or not the crime was, number one,

13 committed; and number two, it lacks any evidence to support allegations

14 that are brought forward.

15 JUDGE ROBINSON: Yes, Ms. O'Leary.

16 MS. O'LEARY: Thank you.

17 Q. What could you expect to find if you went there today and

18 performed these site investigations?

19 A. If it is a scene as reported and alleged, I would expect to find

20 some type of human remains there; the reason being, at some point in time

21 this home was cleared, the home -- the lot was cleared off of all the

22 rubble and remains of the fire. But as the Chamber is aware, where a

23 body is consumed in the fire, not necessarily all the body parts are

24 consumed. There is residue and body parts that are left behind.

25 Regardless of how intense the fire is, not all the body parts will burn

Page 6477

1 of all of the victims.

2 So at some point in time, somebody went in and removed the

3 remains of that fire and took the material out to ground level to where

4 we see these stem walls. Over time as it's rained or people have walked

5 on that, the possibility of bone fragments and other evidence would have

6 been pushed into the earth, and I have no evidence to the contrary that a

7 crime scene was taken down below the foundation level, so I have every

8 reason to believe that if the allegations are true, I should find some

9 sort of trace evidence in that soil.

10 Q. How complicated would it be to undertake a process to examine the

11 soil in that way?

12 A. It's not complicated at all. In fact, that was the work that

13 Dr. Clark was doing back as early as, you know, 1998, 1996. It's really

14 an archaeological dig where you come in, and his particular team, he

15 brought in a pathologist. He brought in an archaeologist. He brought in

16 a forensics expert, and they conducted a search at the two Slap sites

17 north of Visegrad, and they did it by textbook. The site was gridded.

18 The remains were photographed and collected. They collected any evidence

19 that they found, like bullet fragments. All of that was documented and

20 submitted in reports. It was perfect.

21 Q. Thank you. You -- now, you mentioned Dr. Clark, and you

22 mentioned him in your report as well. What does he have to do with these

23 scenes?

24 A. He has really nothing to do with these scenes, per se, but the

25 work that he did is a classic example of the way that a -- that these

Page 6478

1 scenes should have been worked, and it also indicates to me that they had

2 the technical expertise within a very short distance of Visegrad and

3 probably could have called upon Dr. Clark to assist them in processing

4 the scene if they were unsure how to do it. They had the technical

5 expertise in close proximity fairly early on after the alleged incidents

6 took place in 1992, and they already had the staff, as it were, on the

7 ground. With very little effort, they could have tasked Dr. Clark to

8 come to Visegrad and perform the on-site forensics work at these two

9 scenes, and he would have probably only spent maybe another week, maybe

10 two weeks' time fully excavating that property.

11 Q. And why wasn't it done in a similar manner at these sites, as far

12 as you know?

13 A. I don't know.

14 Q. And with lack of forensic evidence, what can an investigator look

15 to in these scenes to ultimately find out what happened to the victims?

16 A. Without the forensic evidence or without someone, a witness

17 coming forward and taking the investigator to the site where the remains

18 have been buried, you're really at a loss. There's nothing more you can

19 do.

20 Q. What do we know about -- or what do you know, excuse me, about

21 the removal of the bodies?

22 A. I know nothing about the removal of the bodies.

23 Q. Why --

24 A. I'm sorry.

25 Q. Pardon. I need to wait for translation. Why is that important

Page 6479

1 to these investigations?

2 A. Well, I think there's the practical side, the investigative side

3 of the equation, and that is we would want to be able to find and

4 identify the cause of death and the manner of death of these individuals,

5 which is an important part of any homicide investigation. But on the

6 humane, moral side of the equation, I think we owe it not only to the

7 families of the victims but also to the decedents themselves to ensure

8 they receive a proper burial and that the families can deal with their

9 losses properly.

10 Q. Where are the remains today?

11 A. I don't know.

12 Q. What is the possibility, given these two fires, and I know that

13 you don't -- you're not a fire expert, but what is the possibility, in

14 your experience in dealing with fire investigations, that the heat was so

15 strong that there were absolutely no remains to be found?

16 MS. MARCUS: Objection, Your Honours. There has not been any

17 evidence whatsoever either in Mr. Jenkins's report nor in his testimony

18 that he has ever even done a fire investigation. Perhaps we could lay a

19 foundation for his experience, if any, on that matter.

20 JUDGE ROBINSON: Yes. Lay the foundation.

21 MS. O'LEARY: Thank you, Your Honour.

22 Q. What experience have you had in fire investigations directly?

23 A. I've had some limited experience, but it's primarily been to

24 respond -- when I was working as a field investigator, to respond to the

25 fire, and once human remains had been found, to call the arson

Page 6480

1 investigators to the scene. So my experience, really, is casual. I have

2 been on the scene of the fires. I've scene the human remains from

3 various fires, but as far as, you know, any in-depth experience, I

4 really -- I don't have very much.

5 MS. MARCUS: Your Honours, in light of that testimony, I would

6 submit that any evidence relating to this would be excluded from this

7 witness's testimony.

8 JUDGE ROBINSON: Well, Ms. O'Leary would have heard the answer,

9 and I don't think there is much point in putting the question to him.

10 MS. O'LEARY: Well, Your Honour, we were just asking

11 hypothetically, based on his experience of being at the scene of fire

12 victims, what he has experienced there, based on his knowledge of what

13 he's seen and knowledge of the fire temperatures and based on the cause

14 what he might expect to find in an investigation.

15 JUDGE ROBINSON: But he has described his experience as limited.

16 I think you should move on to another question.

17 MS. O'LEARY: Yes, Your Honour.

18 Q. We can move on, then, Mr. Jenkins, and actually move to the third

19 site of Varda.

20 MS. O'LEARY: If we could have on the screen, actually,

21 1D22-0705, page 13. Again, it's the photo index. Oh, and I apologise.

22 It's my fault. I would like to admit the marked photo that was on the

23 screen, if possible.

24 THE REGISTRAR: Exhibit 1D213, Your Honours.

25 MS. O'LEARY: And actually one thing before we leave Bikavac. If

Page 6481

1 we could go to page 11 of that photo index first, please.

2 Q. Now, Mr. Jenkins, you are familiar with the testimony of a

3 survivor of the Bikavac fire?

4 A. Yes.

5 Q. How did that affect your investigation at the site visit?

6 A. There is a question from an investigative point of view as to

7 whether or not the witness would be able to fit through the opening of

8 the garage door as she has indicated in her various statements. In

9 casual observation of the Visegrad area, I noticed that there were

10 several garage doors that matched the general description of the door

11 described by the witness. And when we got to the Bikavac area, it seems

12 that that particular type of garage door was commonly used among all of

13 the homes that were constructed in that area, and all the homes appear to

14 be fairly contemporaneously constructed. They were all built at

15 approximately the same time, it appears.

16 Q. I'm sorry to interrupt you.

17 MS. O'LEARY: But actually page 11, please, if we could have that

18 on the screen. Thank you.

19 Q. What's the top photograph, Mr. Jenkins?

20 A. This is a photograph of a garage door taken on the -- this

21 building is directly adjacent to the Bikavac fire scene. It is the

22 building that is -- I'm getting my directions -- I think it's to the

23 north of the area, but it is the property that's adjacent -- directly

24 next-door to the Bikavac scene, and this garage door that you see in this

25 photograph is typical of all of the garage doors on the residences in

Page 6482

1 that immediate area.

2 Q. Who took this photograph?

3 A. I did.

4 Q. And when did you take it?

5 A. This photograph was taken on 29 January of '09.

6 Q. What about the photo below it?

7 A. That photograph is a measurement showing the height of the door,

8 and unfortunately it's a little bit small, but that door is approximately

9 5 feet, 5 inches, and all we had was a US standard tape measure. We

10 didn't have a metric measure with us, but it's just over 5 feet tall.

11 MS. O'LEARY: If we go to the next page, please.

12 THE WITNESS: By the way, I did the conversion to 165 centimetres

13 after I got home. I didn't have that information with me.

14 MS. O'LEARY:

15 Q. Thank you, Mr. Jenkins. What are these two photographs

16 indicating, if you could start with the top photograph, please.

17 A. Yes. This is a photograph of a measurement from the bottom of

18 the window to the top of the window that you saw in the prior photograph.

19 Q. And the bottom photograph, what does that indicate?

20 A. That is actually just a close-up of the measurement, and it's

21 9 inches or approximately 22.9 centimetres.

22 Q. Why was it important to you to measure the windows?

23 A. Well, in the witness's statements, she's indicated that she

24 crawled through a window to the ground on the other side where she made

25 her escape, and I have not had the opportunity to visually see the

Page 6483

1 witness, so I felt it was necessary to take these particular photographs

2 to present to the Chamber so that -- since they have seen her, they would

3 be able to assess for themselves whether or not they felt that she could

4 physically fit through that window as she's reported.

5 Q. What other possibilities would you entertain with the door

6 besides fitting through the window in her testimony?

7 A. Well, it speaks to the injuries, I think, that we have seen on

8 the witness. I've reviewed the photographs that were taken right after

9 the injuries were incurred, and just to refresh the Chamber's

10 recollection, she had severe burns across her forehead, her hair, her

11 left hand. She had lost some fingers due to the fire on her left hand.

12 Obviously, she had been in a severe environment of fire. But the

13 question, then, from a logical standpoint is if she was engulfed in fire

14 inside the house, how much time would it take her to work her way to the

15 window, crawl out of the window on the terrace or through that door, and

16 then make her way through that window? And does that amount of time

17 correspond to the injuries that we see on the witness?

18 So, if you will, she gets to the window, and she starts to climb

19 out. We would expect that it would take a longer period of time for her

20 to work her way through that window and drop out on the other side. That

21 would be fairly quick for her to drop on the other side. But the time it

22 would take for her to climb through that, we would expect the lower torso

23 of this witness to be exposed to the fire for a longer period of time,

24 and I would expect to see more injury on the lower half of her body and

25 on her legs that would also correspond to the injuries that we saw on her

Page 6484

1 head. The lower half of her body would be in the fire for a longer

2 period of time, and I don't believe we have those injuries.

3 Q. Given the statements that were available to the investigators at

4 the time, what other alternative theories should they have considered, in

5 your opinion?

6 A. In her original statements, she had indicated that when she

7 arrived at the police station she told a young soldier that she had

8 tripped -- I believe it was tripped over a butane bottle and had caught

9 her hair on fire, an epileptic fit or something like that. And it seems

10 from the evidence that -- I mean, that is certainly a viable alternative

11 to what happened, and from the injuries that we see on her, that fits

12 more with the evidence that we see on -- the photographic evidence that

13 we see on the witness. From my perspective, it seems that that is a more

14 likely scenario than crawling through that window.

15 Q. How does it affect this investigation that alternative theories

16 weren't pursued, as far as we know?

17 A. Well, it certainly could have affected from the very beginning

18 how aggressively the Bikavac fire was investigated. If the possibilities

19 were there that the witness was simply trying to insert herself into an

20 investigation for whatever her motives may be, that option should be

21 considered.

22 MS. O'LEARY: Your Honour, I'd like the other photographs -- I'd

23 like to mark for identification these four photographs of the garage

24 door, please.

25 JUDGE ROBINSON: Yes.

Page 6485

1 THE REGISTRAR: Exhibit 1D214, marked for identification,

2 Your Honours.

3 MS. O'LEARY: Thank you.

4 If we could have 65 ter 175.15 up on the screens, please.

5 Q. Other than measurement of those garage doors, what type of

6 inspection did you do on those doors? And not referring to the

7 photograph, I was just asking --

8 A. Oh, in general?

9 Q. -- in general on the garage doors that you saw.

10 A. Of the neighboring door, do you mean? Just general construction

11 of the materials, nothing really specific. We looked at the doors to

12 see, as I indicated earlier, if it appeared to be a common material or a

13 common type of door that was used in that area, and we were drawn to the

14 window simply to -- again, to illustrate the point for the Tribunal so

15 that they could make the assessment in their deliberations.

16 Q. And what we have on the screen here now, how does this door,

17 garage door compare to the one that you had seen and photographed?

18 A. It looks almost identical.

19 Q. Hypothetically speaking, then, could that type of door like the

20 one you saw be used to block a standard double-wide patio door opening?

21 A. Yes. I think it could be. But you would have to -- if you

22 notice, this particular's door is hinged on the side and opens in the

23 middle, so we're really talking about removing both halves of that door

24 in order to block -- if we're talking about a sliding glass door, you

25 would have to remove both halves of that door, which would definitely

Page 6486

1 reduce the ability to secure -- really, at that point we're only talking

2 about half of the mass, half of the volume of the door. You could push

3 half of it over much easier than you could push a one-piece garage door.

4 Q. And what were the doors that you saw made of?

5 A. They appear to be made of a lower-grade wood like a -- almost

6 like a plywood.

7 Q. Would that type of material burn?

8 A. Yes, it would.

9 Q. Hypothetically speaking, would this height of door, then,

10 completely cover a standard patio opening, door?

11 A. No, I don't believe it would. It's shorter.

12 JUDGE ROBINSON: How much longer do you plan to be, Ms. O'Leary?

13 MS. O'LEARY: I would say half-hour, 45 minutes; 45 minutes, to

14 be on the safe side.

15 JUDGE ROBINSON: Very well.

16 MS. O'LEARY: Thank you, Your Honour.

17 We can move on to Varda now as I had said before. If we call

18 up -- actually, if we could introduce this photograph, as well,

19 Your Honour.

20 JUDGE ROBINSON: Yes.

21 MS. O'LEARY: Thank you.

22 THE REGISTRAR: Exhibit 1D215, Your Honours.

23 MS. O'LEARY: And if we could call up P153, please.

24 Q. What can you tell us about a site investigation of Varda compared

25 to the two fire scenes?

Page 6487

1 A. As far as the scene itself goes, there really is no scene to

2 work. From a forensic side, there's nothing to be done there. The

3 chances of finding any bullet fragments or, you know, to be able to

4 reconstruct anything as far as the scene itself is concerned is

5 non-existent.

6 Q. What is the photograph on the screen?

7 A. This is a photograph of the Varda factory area.

8 Q. And who took this photograph?

9 A. I don't know.

10 Q. Do you know when it was taken?

11 A. I don't.

12 Q. Now, as an investigator, if there is not the forensic evidence

13 you're looking for, what should they be looking for in a scene like this?

14 A. In this particular scene, I was really calling upon my expertise

15 as a former commander in our narcotics unit where we would plan and

16 execute raids on drug dealers and organised crime operations and trying

17 to put myself in the shoes of someone who was planning a raid on this

18 particular factory; how would I best accomplish that raid with the best

19 chance of success? So if I were to plan an operation where I was going

20 to raid this factory and take some of the employees out, put them under

21 arrest, how would I accomplish that?

22 Q. How does that relate to surveying this incident scene?

23 A. The allegation in Varda is that the defendant drove his vehicle

24 to the area around that small red building that is located in the centre

25 of the photograph, and this -- this building, and then walked in a

Page 6488

1 distance of probably 200 metres or so to the main factory area and took

2 control of several of the employees, then marched them out back to where

3 his car was parked, then down to the river on that -- on this road, and

4 allegedly the employees were then executed down here on the river-bank

5 somewhere.

6 JUDGE ROBINSON: Again, my interest is in knowing how this

7 impacts on the Prosecution's case because we are not interested in the

8 shortcomings of the investigation. We only have an interest in the

9 shortcomings to the extent that they impact on the credibility, the

10 reliability of the evidence. So I don't want to hear criticisms of the

11 investigation unless they impact on the Prosecution's case.

12 The investigation might have been better. The question is: As

13 good as it was or as bad as it was, has the Prosecution adduced evidence

14 to satisfy the Trial Chamber beyond a reasonable doubt? That's our

15 interest in it. I'm not writing a criticism of the investigation. So

16 each time you ask him a question, I'm waiting to hear how it impacts on

17 the Prosecution's case; otherwise, I'm not going to allow any

18 cross-examination in relation to it because it's not really strictly

19 relevant.

20 MS. O'LEARY: Thank you, Your Honour.

21 Q. The investigators in this case did take statements that I believe

22 you had access to; yes?

23 A. Yes.

24 Q. And what can you tell me about the distances that you saw on the

25 scene in relation to the statements that were taken?

Page 6489

1 A. Well, the distance from the area where the vehicle was parked

2 approximately in here, you can't even see the factory area where the

3 employees were allegedly taken. It is off the photograph back in this

4 area, and the witnesses that were used were located in these houses. So

5 we're talking probably in the area of 200 metres to 220 metres there; I

6 would say a hundred -- somewhere between 75 and a hundred metres here;

7 and probably close to 200 to 225 metres to that house.

8 Q. And do you know any indication of the distance between the road

9 and the river-bank?

10 A. Down this road?

11 Q. Yes.

12 A. I would estimate that at somewhere in the area of 75 metres.

13 Q. And what about this photograph may be different than at the

14 relevant indicted time-period?

15 A. My understanding is that this retaining wall or this walkway has

16 been constructed since the incident allegedly took place.

17 Q. Thank you.

18 MS. O'LEARY: And can I move to admit this photo, please,

19 Your Honour.

20 JUDGE ROBINSON: Yes.

21 THE REGISTRAR: Exhibit 1D216, Your Honours.

22 MS. O'LEARY: Thank you.

23 Q. Are you aware of any follow-up investigations in this case?

24 A. No.

25 Q. Moving away from forensics, then, I want to talk about how you

Page 6490

1 verify victims. As an investigator, how would you identify murder

2 victims in a case?

3 A. Really, there are two ways to identify in a case like this,

4 especially given the time-period. The most reliable way is through DNA,

5 and in the alternative we would be looking either for dental records or

6 possibly unique jewellery or documents of identification.

7 Q. If you cannot establish death through forensic materials, what

8 other methodology would you employee as an investigator?

9 A. At that point -- in this particular instance because we're really

10 talking about a war zone, I think it's imperative that you contact either

11 the Red Cross or the Crescent Moon Society or NATO, some of the

12 organizations that are responsible for moving refugees out of harm's way

13 into a safer location because those organizations are very good at

14 documenting the names of the individuals that they are dealing with. So

15 at a later time, they can put the families back together if they happen

16 to be separated because of the war.

17 Q. What is the effect if you find later on that some victims are

18 actually not victims of an incident? How does that affect your

19 investigation?

20 A. Well, it certainly diminishes the number of decedents that you're

21 concerned with identifying, and I think it would then cause you to even

22 exercise more due diligence as an investigator to ensure that as many

23 people as possible had been identified as being alive and well, and that

24 information then needs to be known -- taken to the families so that they

25 can hopefully reconnect.

Page 6497

1 was not covered in the statement.

2 Q. And hypothetically speaking, then, as an investigator, if you

3 were to be reviewing this case, this cold case, having the materials that

4 you reviewed with the statements and the site visit and everything that

5 you had available to you, would you hypothetically be referring it to the

6 Prosecution for prosecution?

7 A. Given the overall quality, I would want my investigators to do

8 more before I brought it to the Prosecution.

9 Q. Thank you. We can move on to Bikavac, I believe, now. Same

10 questions and the same recap, basically, of everything that you reviewed.

11 JUDGE ROBINSON: Sorry. May I ask you, Mr. Jenkins, whether the

12 view that you just expressed would be prompted by your feeling that the

13 evidence would not have been enough to secure a conviction or simply that

14 you yourself would feel more confident with more evidence?

15 THE WITNESS: I think the evidence that was presented is lacking

16 sufficient grounds to warrant conviction, and I would want my

17 investigators to present the Prosecution with the most evidence that we

18 possibly could to ensure that conviction. I hope that answers your

19 question.

20 JUDGE ROBINSON: Yes. Thank you.

21 MS. O'LEARY:

22 Q. So back to Bikavac. You had the statement and testimony of the

23 survivor, VG-114.

24 A. Yes.

25 Q. You had statements and testimony of people who had interacted

Page 6498

1 with her and who had witnessed the alleged incident, and you also had the

2 availability of a site visit.

3 A. Yes.

4 Q. Putting that all together, what are the shortcomings in that

5 investigation which would impact the OTP's case, in your investigative

6 opinion?

7 A. The forensics investigation is certainly insufficient. In

8 addition, I think the witness statements required further scrutiny.

9 Their inconsistencies are troubling to me because generally the

10 statements do not match up with the physical evidence that we do have at

11 hand and was present at the scene.

12 Q. Would it assist you if we brought -- [Microphone not activated].

13 Would it assist you if we brought a map back on the screen in discussing

14 any of this?

15 A. We can certainly discuss that scene if you wish, in more detail.

16 MS. O'LEARY: I take this opportunity to ask for admission of

17 this marked photograph, then, Your Honours.

18 JUDGE ROBINSON: Yes.

19 MS. O'LEARY: Thank you.

20 THE REGISTRAR: Exhibit 1D217.

21 MS. O'LEARY: And then if we could have -- I believe the aerial

22 of Bikavac is 1D20-0021.

23 THE INTERPRETER: Would the counsel please switch off her

24 microphone when not using it.

25 MS. O'LEARY: Yes. Thank you.

Page 6499

1 Q. Mr. Jenkins, when you're discussing the inconsistencies of

2 witness statements, can you show us on the map what you're referring to?

3 A. Well, the inconsistencies as far as the witness statements on

4 Bikavac really deal more with the -- the witness, the survivor. There

5 are more inconsistencies in her statement. However, there are other

6 inconsistencies with another -- another witness and that there's some

7 confusion as to the location where they were actually at when they were

8 witnessing the events. I believe some of the people have identified the

9 area down to the south -- I'm sorry, to the north of that as the scene,

10 and that's led to some confusion as to what they actually saw, as well as

11 we have never really been able to -- or I have been unable to identify

12 with any surety the property from which VG-114 was removed and taken to

13 the scene.

14 There are some other issues that I have concerning how they

15 collected all the alleged victims from the residences in that immediate

16 area and why the witnesses themselves were not taken to the scene and

17 executed. If they're having a general round-up of all of the Muslims in

18 that particular area and performing a summary execution, then why was

19 this house with several witnesses left behind when it is in close

20 proximity to the scene? I mean, these are all questions that I have as

21 to why that took place.

22 Q. Thank you. How does this -- these shortcomings as you've just

23 described now affect the Prosecution's case in reliability?

24 A. Well, in my mind, it affects the Prosecution's case because we

25 really don't have a firm idea of what happened. There are too many

Page 6500

1 variables, too many loose ends in the investigation. There are too many

2 other possible alternative answers that we have not sorted through and

3 come up with a conclusion as to the most likely cause of the events.

4 There's just too many loose ends.

5 Q. What specifically -- which loose ends would you like to wrap up

6 in investigating?

7 A. I'm sorry, which what?

8 Q. Which loose ends that you just referred to would you be looking

9 to shore up?

10 A. Well, I think we should talk more with 114 and find out exactly

11 what happened. She finally gave her testimony before the Tribunal, and I

12 understand that that is the final record as to the events, but that

13 testimony needs to be weighed against the physical evidence that we've

14 brought today concerning the door. In addition -- and that sort of stuff

15 should have been addressed in advance. We should have the answers to

16 those questions months ago, even years ago, rather than at the 11th hour

17 in front of the Tribunal. We should have known all of that stuff.

18 In addition, the credibility of other witnesses that were in

19 close proximity to the fire and the identification of individuals; for

20 example, the photo boards that were used, the fact that according to the

21 witnesses all of the offenders at the scene were either wearing

22 balaclavas or ski masks and yet the witnesses were asked to identify the

23 alleged offenders off a photo board, rather than using a voice

24 identification which would be a more proper way to identify people.

25 The witness says she is familiar enough with Mr. Lukic's voice

Page 6501

1 that she would know him anywhere, and yet she wasn't given the

2 opportunity to identify him by his voice. Rather, she was just given a

3 photo array, and she allegedly has known this man for years and years.

4 In my mind that, negates the photo board. That entire identification

5 process was merely an attempt to bolster the investigation, the

6 credibility of the case, but was done so improperly.

7 Q. How does the method taking of statements, of -- being interviewed

8 and digesting differ from in -- a question and answer in this case? How

9 does it affect this specific incident?

10 A. Well, let's look at the transcript that we have before us. It is

11 a record, word by word, of my testimony and the questions that have been

12 asked. By taking a statement in that manner, the investigators really

13 have an advantage because they can pour through those testimonies much

14 the same as the Tribunal is going to do when they evaluate our testimony,

15 and they're going to find nuances in that statement that otherwise may be

16 lost, number one.

17 Number two, there's a possibility of misinformation being either

18 translated because of regional dialect or because of a misunderstanding

19 between the translator and the witness. By providing a tape statement,

20 similar to the transcript that we have before us, that translation can

21 later be retranslated if necessary, and the transcripts can be compared

22 side by side to make sure that everything is transcribed or has been

23 translated properly. It also gives not only the Prosecution the

24 opportunity to have a complete record of what the witness has said, but

25 at a later time it also gives the opportunity to the Defence to do the

Page 6502

1 same thing, so it equals -- it levels the playing field for both sides.

2 With the system that they're using with an interview being

3 conducted and a statement being taken or prepared by the investigator and

4 then being sworn to by the witness, there's a tremendous amount of

5 opportunity for lost information, and also, the investigator has the

6 opportunity to insert his own bias into the investigation. And many of

7 the witnesses do not have the education or the ability to recognise that

8 they possibly are being manipulated and are then willing to sign the

9 statement, trusting that the investigator knows what he's doing and is

10 doing everything properly.

11 Q. So, again, I'd ask you, Mr. Jenkins, in regard to Bikavac,

12 hypothetically speaking, if you were reviewing this cold case with the

13 materials that you had available, the site visit, would you feel

14 comfortable referring it to the Prosecution for further trial?

15 A. No.

16 Q. Why not?

17 A. Again, there's too many inconsistencies in the statements, which

18 I think could have been rectified had statements been taken with the

19 other format. There's too much inconsistency with the evidence. Her

20 injuries do not, in my mind, coincide with the events that have been

21 described by the witness, and the credibility of some of the witnesses

22 that were in close proximity to the events, what they saw, who they

23 identified, are in question. And the other individuals, the other

24 witnesses that were being detained in the house had no direct sight or

25 direct knowledge of the event but, rather, are relying on hearsay

Page 6503

1 information from the information of VG-114.

2 Q. Thank you. And if we could move on, then, finally, to Pionirska.

3 Again, you've reviewed the statements of several of the witnesses,

4 survivors. You've had opportunity to take a site visit.

5 A. I did.

6 Q. Exactly what shortcomings in the investigation do you believe, as

7 an investigator, would impact the OTP's case?

8 A. First of all, the lack of forensic evidence as we've already

9 discussed at length.

10 Secondly, the location of VG-114. She was not in a position to

11 observe anything other than ambient light.

12 Third, the testimony from the witness that managed to escape the

13 march from the residence above the Pionirska scene. She and her sister

14 ducked into the area behind a shed and escaped the area. She said that

15 she had heard gun-shots and heard screaming up to an hour after the

16 incident took place before she manage to work her way out of the scene.

17 In my mind, that is inconsistent with the evidence -- or with the theory

18 that's presented by the Prosecution concerning the fire.

19 That room in the basement of Pionirska would be like an oven. If

20 there was an accelerant used in that room, the temperatures would have

21 risen tremendously. It would have been very, very hot in there, and

22 within a matter of a few moments, the lung tissue of the people in that

23 room would have cooked, and they would have died probably within 5 or

24 10 minutes maximum. So the idea that people were alive in that room for

25 an hour does not fit the evidence or the theory that I see as being put

Page 6504

1 forward.

2 Q. What impact does it have that the witnesses and the alleged

3 survivors identified a person or persons who were later found not to be

4 there?

5 A. It speaks to the credibility of the witnesses and exactly what

6 they saw. Then the question is, what is their motive?

7 Q. And how overall does your investigation of the case and looking

8 at the files, what have you found that makes the Prosecution's case more

9 or less reliable?

10 A. It's really a repeat of everything that we've already testified

11 to from the forensics side of the case through the way the statements

12 were taken to the crime scenes. I mean, there's so many areas of this

13 investigation that are lacking in specificity, and we have no reports

14 from the investigators to give us any information as to why they did the

15 things they did.

16 If you recall yesterday, I am a Prosecution-oriented individual.

17 I have spent, you know, my 23 years on the Albuquerque Police Department

18 putting people in gaol and providing my Prosecution team with the best

19 possible cases that I could. I am surprised, I guess, at the quality of

20 the work that was presented to the Prosecution, the lack of reports.

21 We have no way of knowing, either side, what was done or why, and

22 I am sensitive to the fact, Your Honours, that it was a war zone, but at

23 some point in time it was secure enough that these investigations and --

24 these investigations could have been carried out in a safe manner, even

25 if it required taking in a small security team. The evidence that

Page 6505

1 potentially was lost certainly outweighs the risk of not obtaining the

2 evidence. You know, Dr. Clark was in in 1996 collecting evidence from

3 the Slap scenes. I don't see why the evidence couldn't have been

4 collected as early as 1996 in Visegrad.

5 Q. Thank you. One final question, then, about Pionirska, again,

6 hypothetically, as an investigator having the materials that you had to

7 review, would you feel comfortable referring it to a Prosecution for

8 further case?

9 A. Not with the evidence I have before me now, no.

10 Q. Thank you.

11 MS. O'LEARY: And, Your Honours, with your indulgence, I found

12 the statement for Varda, actually, of the person who he had been

13 referring to. If we could pull it up on the screen and see if that

14 somehow helps. I know the Prosecution had an objection to it.

15 MS. MARCUS: Just to renew the objection, Your Honours. This

16 witness is not someone who testified. It's an out-of-court statement

17 from an out-of-court declarant not tested in court, and there's no --

18 this is a -- it seems to me an inadmissible way to try and get this in.

19 JUDGE ROBINSON: What is the statement?

20 MR. ALARID: May I? And I don't mean to interrupt, but this is

21 important, Your Honour, and they've used the ability to hide this witness

22 from us in not calling them as a position, and this investigator reviewed

23 a statement, that is why he gave the opinion, and I think it's important

24 that you see the statement. This was in the Prosecution's control. It

25 was within their purview, and they made a strategic decision not to call

Page 6506

1 this witness. It is highly relevant to the investigation if you consider

2 the claims about Varda and the testimony of the witnesses. This witness

3 within the factory directly disputes the eyewitnesses that have appeared

4 before this Court.

5 MS. MARCUS: Your Honour, the Prosecution strongly objects to

6 Mr. Alarid's representation of this as being hidden. It was disclosed to

7 the Defence on the 22nd of August of 2008. It was certainly not hidden,

8 and they have had it in their possession. They could have listed this

9 witness as a Defence witness if they found it was relevant. They chose

10 not to do so, and this is not the proper way to get it in.

11 MR. ALARID: Mr. Alarid apologises for the term.

12 MR. IVETIC: Your Honour, we did list him as a Defence witness,

13 though.

14 MR. ALARID: I do apologise, Your Honour. From the perspective,

15 though, it is funny that ICTY statements involving an indictment count

16 come to us after trial started --

17 JUDGE ROBINSON: I already apologised on your behalf, Mr. Alarid.

18 MS. MARCUS: Your Honours, for the record, this is not an ICTY

19 statement.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: The Chamber's understanding is that this

22 statement was utilised by the witness in his work and assisted him in his

23 conclusions. We believe the statement can be put to the witness.

24 MS. O'LEARY: Thank you, Your Honour.

25 If we could call up 1D22-0049. I believe it's redacted, but just

Page 6507

1 for safe measure, maybe not show it to the public gallery. Yes, it's a

2 totally redacted statement.

3 Q. Mr. Jenkins, there's a document on your screen. Is this document

4 familiar to you, and we can move through other pages if it assists.

5 A. It appears to be the cover sheet for the statement of VG-31.

6 Q. What significance does that have to you?

7 A. VG-31 was one of the statements that I reviewed as part of my

8 assessment of the Varda file.

9 Q. And what --

10 MS. O'LEARY: If we could go to the third page of the statement,

11 I believe. Oh, I'm sorry, the [microphone not activated]. I apologise.

12 Q. What specifically in this statement that you reviewed would you

13 have liked to have -- or would you have presented to the Prosecutor as an

14 investigator?

15 A. I'm sorry, did we want to go to page 3?

16 Q. Two. Two has come up here. Or why specifically did you

17 mention -- if I rephrase, maybe it's easier. Why specifically did you

18 mention this individual and his vantage point?

19 A. Because he was actually on site in the factory and was in a

20 position to see what was going on, and his vantage point was much better

21 than the witnesses that had been presented.

22 Q. How many statements did you review of this witness?

23 A. I just reviewed the one, this particular statement.

24 Q. Just this particular statement?

25 A. Yes.

Page 6508

1 Q. Are you certain?

2 A. I believe so. Is this the four-page statement?

3 Q. There's only three pages on this statement, Mr. Jenkins.

4 A. The one I reviewed I believe was four pages long, I believe.

5 MS. O'LEARY: If we could put 1D22-0045 on the screen, please,

6 then. And again, this one is not redacted, so please don't broadcast to

7 the public gallery.

8 Q. On the right side of your screen -- well, in the centre of your

9 screen now, what can you tell me about this statement in relation to your

10 material review?

11 A. Yes. Can you magnify that one more time? Thank you. Concerning

12 this particular statement? Can we move down -- thank you.

13 So page 1 really deals with the conversation that took place

14 between the witness and other parties that were involved in -- or other

15 parties that were there, and at that point the report is made that the

16 paramilitary group is there and it is taking people.

17 Q. Of course. But relevant to Varda, what part --

18 THE INTERPRETER: Microphone, please.

19 MS. O'LEARY:

20 Q. Relevant to Varda, what part of this statement made you mention

21 it?

22 A. What really got me was the fact that -- number one, the way they

23 burst in. He uses the term "burst in," which indicates to me that it's

24 more of a raid situation than just casually walking in. That would speak

25 to me of the tactics that were used to gain entry into the factory, and

Page 6509

1 the inconsistency, then, why would you park your car 200 metres away,

2 walk casually up to the factory, and then burst in. If you're going to

3 conduct any kind of a raid, especially if you are as important as the

4 Prosecution alludes to the defendant, you would just drive your car right

5 up to the door and get out and execute the raid. That was inconsistent

6 for me.

7 Also, if we can go down to the -- I guess to the next page. He

8 talks about -- at this point how the body -- or how the individuals were

9 taken out, and allegedly taken down to the area and shot. And he states

10 then that as he left the scene, he saw the bodies in the river and were

11 supposedly later excavated as part of the Slap find. I'm not sure how he

12 knows that information, and it's -- the record from the investigators is

13 moot on that point. We don't know how he got there to that conclusion.

14 But he is able to identify by name the individuals that were taken from

15 the scene at Varda and allegedly executed.

16 Q. And in doing so, how was Milan Lukic involved?

17 A. Supposedly, Milan Lukic was the individual that was conducting

18 the raid and was responsible for marching these people down to the

19 river-bank for execution.

20 Q. How does this testimony that we've seen in these two

21 statements -- not testimony, excuse me. How do these statements affect

22 the Prosecution's case in Varda?

23 A. Well, it puts an eye-witness in the scenario where he can

24 identify the individuals that were allegedly taken and killed versus

25 simply just having two women on a balcony over a hundred metres away that

Page 6510

1 can make no identification at all.

2 MS. MARCUS: Your Honours.

3 JUDGE ROBINSON: Yes.

4 MS. MARCUS: Sorry, Mr. Jenkins. It seems the question presumes

5 that Mr. Jenkins had reviewed two statements, whereas if I understood it

6 correctly, he's only reviewed this one statement from the Bosnian

7 authorities, not the ICTY statement, if I understood Mr. Jenkins

8 correctly. I think counsel tried to show him the first statement. He

9 said it was actually a four-page statement, I think, that he had

10 reviewed, and then you called this one up and this was the one that he

11 recognised. So if I'm correct with that, then it would be only with

12 regard to this statement from the Bosnian authorities that he's speaking.

13 JUDGE ROBINSON: Have you reviewed the other statement?

14 THE WITNESS: I have not, Your Honour.

15 MS. O'LEARY:

16 Q. Thank you, Mr. Jenkins, for -- thank you for clarifying that.

17 JUDGE VAN DEN WYNGAERT: Excuse me. I have a question. I missed

18 something, I think, but why didn't the Defence of Milan Lukic call VG-31?

19 Was there a reason for that?

20 MS. O'LEARY: My understanding, Your Honour, is that VG-31, he

21 was on the original list that we had had, which was quite comprehensive,

22 but due to cutting down, he was one that had been taken off the lists at

23 some point. Oh, I believe it was because he was a part of the

24 communications about contact information, and in the end we were never

25 able to secure contact information for this gentleman. Thank you.

Page 6511

1 And Your Honour, I would move to admit just the second Bosnian

2 statement, then, the second one that he had said he had reviewed as a

3 part of his materials.

4 MS. MARCUS: Your Honours, we would object to it being admitted

5 for the purpose of the proof of the matter asserted in the statement.

6 It's been completely untested. It's an out-of-court statement of another

7 declarant. For it to be used explicitly as a basis for assessing

8 Mr. Jenkins's evidence, I think that probably the foundation for that has

9 been laid, but as to the truth of what is internally in it, we would

10 object to it being used for that particular purpose.

11 [Trial Chamber confers]

12 MS. MARCUS: Your Honours -- sorry.

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Do you have anything on that, Ms. O'Leary?

15 MS. O'LEARY: Well, Your Honour, the total of the contents of the

16 statement actually go to why it would affect the credibility of the

17 Prosecution's case in this investigation. As an investigator, he said he

18 would have included it and he would have made sure that this was an

19 integral part -- I'm using words that were not his, so excuse me. But he

20 would have included it as part of his investigation, and as a vital part,

21 I believe that then the substance does go to the fact of what he has

22 reviewed and how it affects the Prosecution's case.

23 MS. MARCUS: Yes, but Your Honours, what we're saying is simply

24 that in the context of Mr. Jenkins's evidence, for example, when Defence

25 makes closing submissions, they can feel free to say that Mr. Jenkins

Page 6512

1 assessed this as relevant evidence for the following reasons. That's

2 part of his evidence. But if the Defence is going to base their closing

3 arguments as to the Varda incident on information contained in here, this

4 would be an improper method to get this statement in. There are rules

5 for -- rules which we use to get in witness statements, and this does not

6 fall under one of those. So it's just about the way that it's used that

7 I would object to.

8 JUDGE ROBINSON: What are those rules?

9 MS. MARCUS: Well, they can call the witness. I think they can

10 still call the witness, or they can try through 92 quater or a 92 bis

11 motion if -- there are rules under 92 bis and quater.

12 JUDGE ROBINSON: We reserve on the admissibility of the

13 statement. Please proceed. Yes, proceed.

14 MS. O'LEARY: Thank you, Your Honour.

15 Q. Just one more question from that statement, then. How in any way

16 does it implicate other suspects in the Varda crime?

17 A. They're named. There are other suspects in there that certainly

18 should be examined more closely as being involved in the incident.

19 Q. And how does that impact the Prosecution's case?

20 A. Well, I think it impacts it tremendously in helping them to sort

21 out exactly what happened at this particular scene.

22 Q. Thank you, Mr. Jenkins. We have just one more area before we're

23 finished here, very brief. I'd briefly like to talk about arrest

24 warrants and identifying suspects. In your jurisdiction, can you put out

25 an arrest warrant?

Page 6513

1 A. Yes.

2 Q. How do you do that?

3 A. There is a preparation of an affidavit stating the reason why

4 there's probable cause to believe that an individual has committed a

5 crime. That affidavit is then taken along with the arrest warrant before

6 a judge. It is sworn to as far as the truth and veracity of the

7 affidavit, and if the judge is satisfied that the affidavit is true and

8 correct, a warrant would be issued.

9 Q. And have you ever dealt in your time as an officer, investigator,

10 and deputy chief, have you ever dealt with an out-of-state or

11 international warrant?

12 A. Yes.

13 Q. In those cases, what measures do you take to ensure that you have

14 the right person if you find the suspect?

15 A. Generally on the warrant there are descriptors that would help me

16 identify to ensure that the individual that we have in custody is in fact

17 the same person that's listed on the warrant, the purpose being to

18 eliminate individuals that have the same or similar names.

19 MS. O'LEARY: And if we could have 1D22-0494 on the screen,

20 please.

21 JUDGE ROBINSON: What's the relevance of this, Ms. O'Leary?

22 MS. O'LEARY: Your Honour, we're calling on the screen actually

23 the warrant for Mr. Milan Lukic's arrest. I have about five questions

24 for the gentleman about this document.

25 JUDGE ROBINSON: Yes, but still I have to ask what is that you

Page 6514

1 intend to show by the warrant?

2 MR. ALARID: May I? Your Honour, the bottom line is that if you

3 look at the statements given by the witnesses that have been presented by

4 the Prosecution, there were some early identifying markers. It is our

5 theory of the case that some of those witnesses were used to compile the

6 description that ultimately led to Mr. Lukic's arrest in Argentina.

7 Those physical descriptions came from, we think, like I said, a

8 compilation of descriptions that have appeared before the Court and are

9 already part of the record. And based on that fact, the warrant, we

10 believe, empirically and on its face, is not an accurate description of

11 the man sitting in court today. So by reference, you've got to infer

12 that doubt, if you will, that the people that identified a person who

13 committed a crime, when the description of that person so is differential

14 from the actual description, it brings into doubt, that reasonable doubt

15 that the person identified at the crimes is in fact the person,

16 Milan Lukic.

17 JUDGE ROBINSON: But we have had evidence from witnesses who knew

18 the accused before --

19 MR. ALARID: Yes, Your Honour --

20 JUDGE ROBINSON: -- and who identified -- [Overlapping speakers].

21 MR. ALARID: -- and for instance, VG-63 noted Mr. Milan Lukic as

22 having double eagle tattoos. On that warrant are double eagle tattoos.

23 Another VG witness indicated blue eyes. On that warrant is blue eyes,

24 and a mole above the lip. So from the standpoint of the evidence and the

25 basic appearance of the gentleman in court, we believe that those people

Page 6515

1 correctly identified who they believe committed the crime, but if that

2 warrant does not fit the description of the suspect, as an investigator

3 he has a duty, and that's what we're here to explore.

4 JUDGE ROBINSON: You lost me.

5 Mr. Groome.

6 MR. GROOME: Your Honour, just briefly. It seems that it's been

7 put to the witnesses; the witnesses who describe moles, it was put to

8 them; the witnesses that describe blue eyes, it was put to them. To now

9 at this late stage take a document that is compiled from a number of

10 unknown sources, I don't see what relevance it has. Mr. Lukic is going

11 to testify next week. He can tell us the colour of his eyes. He can

12 tell us what tattoos he has, and it'll be for the Chamber to consider

13 that in light of the descriptions given by the witnesses. But to ask

14 Mr. Jenkins about his views about a warrant when neither Mr. Jenkins or

15 any of us in the courtroom know the providence or the source of any of

16 the descriptions contained in the warrant I suggest has absolutely no

17 relevance in this case.

18 MR. ALARID: Well, the relevance is, Your Honour, on the face of

19 the warrant the applicant for the warrant is the ICTY, one; secondly,

20 within the purview of the warrant, we requested the records of

21 Milan Lukic from Interpol. Conveniently or coincidentally, the Interpol

22 file on Milan Lukic in Bosnia was lost, and so we were unable to get the

23 verifying file, if you will, that Interpol should have kept for purposes

24 of the warrant and description. But I think it's very suspect that the

25 OTP would make an attempt to exclude a warrant for which they applied.

Page 6516

1 [Trial Chamber confers]

2 JUDGE ROBINSON: Ms. O'Leary, the Chamber will not allow this

3 evidence.

4 MS. O'LEARY: Thank you, Your Honour. Without the document,

5 then, I have just a couple questions on that matter that are similarly

6 related.

7 Q. Have you ever met Milan Lukic?

8 A. I have.

9 Q. When did you meet Milan Lukic?

10 A. The day before yesterday.

11 Q. What was the occasion of that visit?

12 A. I went to the detention facility here in The Hague and had a

13 visual examination of Mr. Lukic.

14 Q. When you say visual examination, can you explain what you were

15 visualising, which ...

16 A. I was looking for identifying marks that are described on the

17 document and trying to see if in fact --

18 MS. MARCUS: Sorry, Mr. Jenkins. Your Honours, can we know which

19 document Mr. Jenkins is referring to?

20 THE WITNESS: I'm referring to the warrant, Your Honour.

21 MS. O'LEARY:

22 Q. Without referring to the warrant.

23 MR. ALARID: Your Honours, this is really difficult to dance

24 around something that shouldn't be danced around. I believe a warrant is

25 a self-authenticating document. It exists within the court system for

Page 6517

1 the benefit of both the Court, the investigators, and the arresting

2 officers. The fact that we're dancing around it is something that an

3 investigator and an officer would regularly review and incorporate when

4 you arrest a suspect is the description within the warrant. The proffer

5 that we are making is, Your Honour, is that the warrant was reviewed by

6 the officer as if he were the investigating and arresting officer, and he

7 in fact conducted an inspection of the suspect as to confirmation or

8 exclusion by virtue of the warrant description.

9 JUDGE ROBINSON: What is to be gathered from this evidence?

10 MR. ALARID: This is an identification case, Your Honour. It is

11 our theory of the case that the person -- if these people were in fact

12 victimized yet hardly knew Milan Lukic, isn't there a shred of

13 possibility that by virtue of cross-referencing a name to an erroneous

14 description that they in fact could believe a Milan Lukic was the

15 perpetrator, and in fact it wasn't. If they gave the description based

16 on that belief of a blond hair, blue-eyed person, or a gentleman with

17 tattoos, then that goes to the weight of that identification evidence.

18 This is an ID case. We are not by any way stipulating, and the fact that

19 we've presented alibi evidence goes to that fact.

20 MS. MARCUS: Your Honours, I would make just one brief point on

21 that. If Mr. Jenkins has reviewed all the witness evidence as to

22 identification, I'm still not clear on what the relevance is of the

23 arrest warrant. If he wants to talk about his observations of the

24 physical description compared to the witness evidence he reviewed with

25 specific reference to particular evidence, then it seems fine. I still

Page 6518

1 don't think the warrant is necessary.

2 JUDGE ROBINSON: Consistent with the ruling we gave earlier, we

3 will not allow any evidence relating to the warrant.

4 MS. O'LEARY:

5 Q. Not mentioning the warrant, leaving that out of this, when you

6 met with Milan Lukic, please explain the purpose of the visit or what

7 visual review you did.

8 A. When I met Mr. Lukic was inside the facility, as I said, here at

9 The Hague, and I asked Mr. Lukic if he wouldn't mind stripping to the

10 waist, and he complied willingly, and I conducted a visual examination of

11 Mr. Lukic, looking on both arms, under his arms, checking his torso,

12 checking his face, his neck, all of his upper body.

13 Q. And what colour was his hair?

14 A. Dark brown.

15 Q. And what colour were his eyes?

16 A. They were dark brown as well.

17 Q. What tattoos did he have that were visible to you on his upper

18 torso and/or head?

19 A. There are no tattoos at all.

20 Q. What evidence is there of any tattoos previously being there that

21 may have been removed or altered?

22 A. There's no evidence of ever having had tattoos. The skin is soft

23 and there's no scarring on anything on either of the arms that would tend

24 to make me think that at one point there had been tattoos.

25 JUDGE ROBINSON: Do you have experience in that area,

Page 6519

1 Mr. Jenkins?

2 THE WITNESS: I'm sorry, Your Honour?

3 JUDGE ROBINSON: Do you have experience in that area?

4 THE WITNESS: Of examining bodies? Yes, Your Honour.

5 JUDGE ROBINSON: No, of saying whether a tattoo might have been

6 present.

7 THE WITNESS: I have seen tattoo removal on many prisoners over

8 the years, and I am familiar with the scarring that takes place when

9 those tattoos are removed.

10 JUDGE ROBINSON: Yes, and you saw none.

11 THE WITNESS: I saw none.

12 JUDGE ROBINSON: Yes, Ms. O'Leary.

13 MS. O'LEARY: Thank you.

14 Q. What birth-marks did you see from the head?

15 A. There are no birth-marks. Especially on his face, there are no

16 moles or birth-marks or anything like that on his face.

17 Q. What about on his torso, arms?

18 A. There are several small moles on his back, but they're not

19 birth-marks. They're just -- they're small moles.

20 Q. Thank you. And what, if any, other identifying features are

21 there that would be remarkable?

22 A. He is approximately, I believe, 186 centimetres versus the height

23 on the warrant which is 183 --

24 Q. Please don't reference the warrant.

25 A. I'm sorry. I beg your pardon. But he is --

Page 6520

1 JUDGE ROBINSON: How much in feet?

2 THE WITNESS: I would say he's about 6'1", 6 feet 1. Medium

3 build, appears to be in good shape.

4 JUDGE ROBINSON: Can you speak to the question of any moles that

5 might have been on his face which might have been removed?

6 THE WITNESS: I could not -- I did not see anything that appeared

7 to be a surgery. There is a small spot on the lip, but not being a

8 physician I could not say what that is, but there was no indication of a

9 mole.

10 JUDGE ROBINSON: Yes, Ms. O'Leary.

11 MS. O'LEARY:

12 Q. And what if any scars were you able to ascertain?

13 A. I saw no scars at all.

14 MS. O'LEARY: Thank you. That's all the questions I have right

15 now, Your Honour.

16 JUDGE ROBINSON: Thank you.

17 Ms. Marcus.

18 MS. MARCUS: Thank you, Your Honours.

19 Cross-examination by Ms. Marcus:

20 Q. Mr. Jenkins, my name is Maxine Marcus, and I'm going to be asking

21 you some questions on behalf of the Prosecution.

22 A. Counsellor.

23 Q. Now, you are clearly a very highly --

24 JUDGE ROBINSON: I neglected to tell Ms. Marcus that she

25 performed commendably in marshalling --

Page 6521

1 MS. MARCUS: Ms. O'Leary. I think you mean Ms. O'Leary.

2 JUDGE ROBINSON: Ms. O'Leary. I think Ms. Marcus doesn't need a

3 commendation.

4 MS. O'LEARY: Thank you, Your Honour. You can commend Ms. Marcus

5 after she's finished.

6 JUDGE ROBINSON: Notwithstanding the comments that I made, I

7 think you marshalled the evidence commendably.

8 MS. O'LEARY: No, and thank you for the guidance. Thank you,

9 Your Honour.

10 JUDGE ROBINSON: Yes, Ms. Marcus.

11 MS. MARCUS: Thank you, Your Honours.

12 Q. Now, Mr. Jenkins, you're clearly a very highly experienced police

13 officer, and we're honored to have you here. Am I correct in

14 understanding that your law enforcement experience has been exclusively

15 carried out in Albuquerque, New Mexico?

16 A. No.

17 Q. Could you clarify for us, please.

18 A. I am a former reserve agent with the Air Force Office of Special

19 Investigations. Also at one time, I was part of a drug enforce -- the

20 USDEA Task Force, and we therefore had national jurisdiction. And we

21 have investigated and been involved in large-scale money laundering

22 operation involving a former attorney general for the state of New Mexico

23 who was laundering money through the state of Kentucky into China, into

24 South America, and then into the Caribbean.

25 Q. Okay. Thank you, sir. So could you --

Page 6522

1 THE INTERPRETER: Please remember to pause between question and

2 answer. Thank you.

3 MS. MARCUS: I'm sorry.

4 Q. Could you tell us, then, how much time, in years or -- that you

5 spent with the Air Force and with the USDEA Task Force.

6 A. The time with the Air Force I really need to break into two

7 sections, if that's okay with you, because part of it was as a munitions

8 technician in my first enlistment with the air guard, and I was

9 recruited, then, to go into OSI as a reservist because of my experience

10 with the police department. So my actual time in OSI is about 12 years.

11 Q. Thank you. Now, can you tell us what years those were?

12 A. I was in OSI from 1976 through 19 -- let's see. So it would have

13 been, I'm sorry, 1974 through approximately 1986.

14 Q. Thank you, sir.

15 MS. MARCUS: Now could I ask the court officer, please, to call

16 up, please, 1D208 and just to page 1.

17 Q. Sir, while we're calling that up, it was a little bit difficult

18 to figure out from your CV exactly how many years you spent in each role.

19 You described a wide variety of responsibilities, but the years were not

20 indicated.

21 A. Mm-hm.

22 Q. So can you tell us, how long were your tenure as the deputy chief

23 of police of the Albuquerque Police Department?

24 A. Two years.

25 Q. And what years were those, please?

Page 6523

1 A. I left in January of 1996, so 1994 to 1996.

2 Q. Now, if we look at your -- the front page of your CV, it says

3 that your work history relating to the Albuquerque Police Department was

4 from 1972 to 2008. So is that an error, or did we misunderstand

5 something there?

6 A. No, that -- that is a work history from 1972 to 2008. That is

7 not necessarily within APD, but 2008 was when the CV was prepared, so

8 that would probably be a little bit misleading on my part to you, and I

9 will correct that. Thank you for bringing that to my attention.

10 Q. No problem. So when you testified yesterday that you began this

11 company that you set up, Jenkins and Jenkins, that was after your

12 retirement from the APD. Is that correct?

13 A. That's correct.

14 Q. Okay. Thank you. Now, as -- in your role, in your two-year role

15 as the deputy chief of the APD, you were responsible for all aspects --

16 you were responsible for aspects outside law enforcement. That's what

17 you told us yesterday; is that right?

18 A. Areas outside of direct law enforcement responsibilities.

19 Basically the administrative aspects of the organisation, the day-to-day

20 operation, the budgetary, communications, those sorts of things, rather

21 than responsibility for investigators or officers making arrests and

22 investigating crimes.

23 Q. Now I'm pausing just for the -- so you know, for the transcript.

24 Now, so I presume in that role you had input into the hiring, firing, and

25 promotion of police officers in the APD. Is that accurate?

Page 6524

1 A. Nothing to do with promotion. That is done through an outside

2 agency through an assessment centre process, but hiring -- I'm sorry, but

3 internal affairs deals with the disciplinary aspects of it. And we do

4 hire through personnel through testing and psychological profiling, and

5 at that point they come before what is called the chief selection

6 committee, which I chaired, and then we make a final determination

7 whether or not we will tender an offer for employment.

8 Q. So to review the number of years of investigative experience

9 specifically, I'm just going to break it up. How many years of your, I

10 think, 24 years in total of service, approximately --

11 A. About 23.

12 Q. Twenty-three. Now, how many years did you spend directly engaged

13 yourself in carrying out criminal investigations in the field?

14 A. Not as a supervisor but as a --

15 Q. Directly carrying it. I'm going to break it out in that way.

16 A. Okay. Let's see.

17 JUDGE ROBINSON: Just a minute. Mr. Cepic.

18 MR. CEPIC: I apologise for interrupting, but I think that in

19 last couple of weeks my main activity in this courtroom is just

20 interrupting for translation. Thank you.

21 JUDGE ROBINSON: Well, I am sorry that you have been confined to

22 the rule, Mr. Cepic, but I'm going to ask the witness and the Prosecutor

23 to observe the pause between question and answer.

24 MS. MARCUS: Apologies to the interpreters.

25 Q. It's not that usual, Mr. Jenkins, that we question somebody in

Page 6525

1 our own language speaking English, so it's -- it's a temptation.

2 A. I understand, and I will try to do my part as well --

3 THE INTERPRETER: Again, please, observe the pause between

4 questions and answers.

5 MS. MARCUS:

6 Q. So you were describing to us, I think, the number of years you

7 spent directly engaged in criminal investigations.

8 A. That is -- if you're talking solely about detective work, is that

9 what you're referring to? Because criminal investigations are also

10 conducted by officers in the field on lower-level crimes, so if you're

11 talking about specific time in detectives, that will be different. And I

12 just want to make sure that I can answer your question correctly so that

13 you're satisfied with the answer.

14 Q. What I'm trying to get at is that I think your evidence yesterday

15 included some roles that you served in the crime lab and some other roles

16 that you served in supervising investigations, so I'm trying to break it

17 out how many years in the field conducting investigations. If a

18 detective is doing that, as well, I'd like to know about that. So actual

19 field investigations into criminal activity.

20 A. Okay. That would probably with that caveat begin with my role as

21 a field investigator, which would have been 1976, I believe. That is

22 when you actually begin, in my case, doing the forensics aspects of it,

23 which would be part of the criminal investigation process. From there, I

24 went into the burglary and narcotics unit where I served six years, so

25 that's a total of eight there. Came back to burglary for about another

Page 6526

1 six or eight months after my temporary assignment to the planning and

2 research division -- department. At that time, I got promoted to the

3 rank of sergeant, and I went to the field as a field supervisor, so I was

4 not involved at that time with investigations per se but, rather,

5 supervising officers in the field.

6 JUDGE ROBINSON: Ms. Marcus, Judge Van Den Wyngaert is asking me,

7 do we need all of this? I know it -- probably you will say it goes to

8 the weight that we'll attach to his evidence as an expert.

9 MS. MARCUS: I intended it to be rather brief. I think the

10 detail is probably unnecessary. Thank you, Your Honours.

11 Q. Now, sir, so how many years in your law enforcement career did

12 you spend in internal investigations?

13 A. I did not spend any time in internal investigations. They

14 reported to me as a deputy chief, so I'm in their chain of command but

15 did not function as an investigator in internal affairs.

16 Q. So if they reported to you, did that mean that you had an active

17 role in managing the investigation or you were in the chain of command

18 and received the information that they produced?

19 A. Both. I'm in a chain of command. That information was reviewed

20 by me, and if the investigation crossed my desk and I felt more

21 investigation needed to be done, then the investigation was sent back

22 down with a note.

23 Q. Now, in which of these roles, and again, we are trying to be a

24 little bit brief, if possible, an approximate number is fine. In which

25 of these roles did you gain experience conducting interviews with victims

Page 6527

1 of serious crimes?

2 A. Primarily my role in violent crimes. As the supervisor in the

3 sex crimes unit, I only had four investigators working with me at that

4 time and was involved in the interview process with many of the victims

5 and the offenders, not only of sex crimes but also of homicides.

6 Q. So could you estimate for us approximately how many cases you

7 dealt with which involved interviewing victims of serious crimes. An

8 approximate number will be fine, sir.

9 A. Well over a hundred. Well over a hundred.

10 Q. Now, in how many of those interviews did you use an interpreter?

11 A. Maybe five, six.

12 Q. And have you ever investigated a cold case?

13 A. Oh, yes.

14 Q. And how many cold cases have you investigated?

15 A. I would say in the area of 15 or 20.

16 Q. Have you ever conducted a protracted investigation after the

17 commission of a crime, so now I'm differentiating between surveillance

18 and tracking in narcotics cases which can be protracted and money

19 laundering, but after the commission of a violent crime, a protracted

20 investigation, have you ever done that?

21 A. Yes.

22 Q. And how many approximately of those have you conducted, sir?

23 A. Two that I can think of right off the top of my head that

24 involved a serial rapist. Those investigations, one was approximately

25 18 months and the other one was almost three years.

Page 6528

1 Q. Mr. Jenkins, the APD has faced a wide variety of internal

2 challenges over the years. Would you say that statement is accurate?

3 A. As any other police department.

4 Q. Okay. We'll return to that a little bit later. Now, the

5 international crimes you referred to yesterday in terms of international

6 investigations, those are primarily money laundering; is that right?

7 A. Money laundering and drug trafficking, yes.

8 Q. Okay. So the international part of that, can you clarify for us,

9 what's the international part of that type of an investigation? Bank

10 transfers or -- for money laundering is -- with foreign banks, is that

11 where the international component comes in?

12 A. Basically, yes. The case involved -- the money laundering

13 aspects were these: We were to give the contact in New Mexico a specific

14 amount of money, whatever that might be. The money was then taken or

15 transferred from the offender's bank in Albuquerque to a bank in

16 Louisville, Kentucky, and was deposited in a --

17 JUDGE ROBINSON: We don't need to hear about his money laundering

18 experience.

19 MS. MARCUS:

20 Q. Yes, sir. Maybe I could -- I don't mean to interrupt you but

21 yes.

22 MS. MARCUS: Yes, sir. I just wanted to know if that was the

23 international part of his criminal investigative work, so I think I

24 received generally a yes answer.

25 THE WITNESS: That's certainly part of it, but we also did

Page 6529

1 extensive investigations on narcotics side, the smuggling aspects of it.

2 MS. MARCUS:

3 Q. Now, would it be accurate to say that you have never investigated

4 violations of international criminal law?

5 A. That's true.

6 Q. And you never received any specified training in investigating

7 international criminal law violations; is that accurate?

8 A. That's accurate, yes.

9 Q. And you've never conducted or been involved in any investigations

10 during an armed conflict or immediately after the armed conflict; is that

11 accurate?

12 A. That's correct.

13 Q. Now, Mr. Jenkins, I'd like to turn to a few of the aspects of

14 your testimony earlier and just ask you a few follow-up questions. You

15 gave us some evidence in relation to VG-115 and the Pionirska incident,

16 and you talked about the view she had and we had some input from

17 Judge Van Den Wyngaert about the angle and what she said she saw and what

18 she didn't see. Now, in your side bar that you attached, your addendum,

19 you attached a number of different photos with different perspectives

20 from near VG-115's location, so an alley and on the streets, and other

21 angles were included. Is that correct?

22 A. Yes.

23 Q. Now, all those other photos, apart from the one photo which was

24 taken exactly from the angle where VG-115 said she was standing, those

25 other photos are quite irrelevant to the case; isn't that accurate?

Page 6530

1 A. No.

2 Q. How would you say that they're relevant?

3 A. Because I think they allow you to put into context the

4 surroundings that she saw other than just standing from the balcony

5 looking out. You have to have some idea in context of the surroundings.

6 So I don't think they were irrelevant [Realtime transcript read in error

7 "relevant"] at all.

8 Q. But if I understood your testimony, your suggestion was that from

9 her perspective she couldn't have seen the actual house that was burning,

10 from her perspective. Is that right?

11 A. That's correct.

12 Q. And you questioned that aspect of her evidence.

13 A. That's correct.

14 Q. So the angles from other places, other than where she was

15 standing, would not be relevant to a question about the veracity of her

16 evidence; is that correct?

17 A. No, I disagree.

18 Q. Okay. Maybe you feel you've explained it before, but if you have

19 something else to add as to why the other angles would be helpful --

20 A. Well, I think --

21 JUDGE ROBINSON: Just before he does that, if you look at -- it's

22 76, line 5: "So I don't think they were relevant at all." I believe the

23 witness said "irrelevant," if I was not mistaken.

24 THE WITNESS: No, I believe they are relevant.

25 JUDGE ROBINSON: Yes. You believe they are relevant, so it

Page 6531

1 should be: "I don't believe they were irrelevant at all."

2 THE WITNESS: Thank you, Your Honour.

3 MS. MARCUS:

4 Q. Yes, sir. Please continue your answer. Thank you.

5 A. I think by, for example, the one photograph that is taken further

6 up the street that shows the balcony and the house -- and the house

7 that's immediately adjacent to the location of VG-115, it gives you some

8 perspective on the overall view that she had versus simply standing on

9 the balcony and taking a picture. In order to really understand what the

10 surroundings were and what she had the opportunity to see, you need to

11 have a much broader view of the scene.

12 Q. Now, with regard to the Bikavac incident, hypothetically

13 speaking, if there was evidence that the metal door was perhaps on its

14 side, or if there were some other evidence as to the metal door, would

15 you perhaps reconsider your assessment of the climbing, et cetera, that

16 you gave?

17 A. I am always open to new evidence.

18 Q. Now, if the witness testified that actually she escaped through a

19 space, and if she gave evidence that the space in her estimation was

20 approximately 60 centimetres, would that evidence also impact on your

21 assessment of her evidence?

22 A. Yes. I actually saw that in her statements, but it was one of

23 the things that's -- the story bounces back and forth and without any

24 reports from the investigators to try to make sense of exactly what

25 happened, it's difficult to tell. But certainly, if that information is

Page 6532

1 the true story, the correct story, that certainly could have some impact.

2 Q. Now, with regard to the Varda incident, the witness whose

3 evidence you discussed, who you suggested the Prosecution may have wished

4 to call, that witness was describing an incident prior to the charged

5 incident. Would you say that's accurate?

6 A. It was, I believe, contemporaneous. There were some instances

7 before the incident, but it was kind of a description of what happened

8 from a time immediately before the incident through the finding of the

9 bodies in the river.

10 Q. Okay. If I understood your evidence on that point correctly,

11 there were essentially three aspects of the evidence that that witness's

12 statement made you think about. Just to group them - and tell me if I'm

13 inaccurate, please - the first one was essentially the raid, the evidence

14 of a raid; second was the question of the identity of the victims; and

15 the third was the possibility of other perpetrators. Would you say

16 that's accurate?

17 A. Yes.

18 Q. Okay. Now, with regard to the raid, you said that a raid would

19 not be conducted in the way that was described this way, that a raid

20 would not be conducted by parking 200 metres away. So the terminology of

21 the word "raid" was not accurate. Is that about right?

22 A. Perhaps that's jargon-ish, if that's a word, but from my

23 perspective as a career law enforcement officer, if I were the defendant,

24 I would drive to the door of the factory, get out of my car, and walk

25 three steps into the factory rather than park my car 200 metres away and

Page 6533

1 run the risk of being seen and have all of the people that I wanted to

2 arrest flee from the scene. The further away you park, you lose that

3 aspect of surprise. So if you're really -- if you're really trying to

4 catch somebody, you want to catch them in as short amount of time as

5 possible rather than give them the opportunity to flee, if that makes

6 sense.

7 Q. Okay. Yes. Now, the witness didn't actually use the word

8 "raid." The witness used the word "burst in," right?

9 A. Correct.

10 Q. So if my son bursts into my room, you're interpreting that -- you

11 know, bursting in could mean a variety of things; isn't that true?

12 A. Hopefully it's not a raid.

13 Q. Right. Exactly. Now, you saw other evidence relating to the

14 Varda factory, as well, and so I presume that you saw that there were

15 other witnesses who testified to the identification of the victims; is

16 that right?

17 A. Yes.

18 Q. And in addition to that, there is another witness who did

19 testify, whose statements I'm sure you reviewed, who was also similarly

20 inside the factory, but instead of seeing an incident prior to the

21 charged incident, she actually saw the incident that was charged.

22 A. Yes.

23 Q. Okay. Now, based on your assessment, then, of VG-31's statement,

24 which, by the way, was a statement to the Bosnian authorities and not a

25 Tribunal statement, VG-31 talks about some other perpetrators, but the

Page 6534

1 way it's written it could read that those were perpetrators who appeared

2 in the factory before the charged incident. Would you say that's

3 accurate?

4 In other words, there could have been other perpetrators who

5 visited the factory on that day, but because of the time-frame, because

6 VG-31 says in that statement or the statement apparently reads that VG-31

7 left and then came back even after those other perpetrators were there,

8 and when he came back, he then heard that the machines had been shut off

9 and some of the factory workers had been taken out.

10 A. Well, I think that that's a possibility, but, again, going back

11 to -- and I hate to go back to the work of the investigators, but that

12 could have all been cleared up and made much clearer rather than the

13 different statements being so inconsistent. I would much rather have

14 seen all of those statements clarified in such a way that these questions

15 could have been answered up front. But in answer to your question

16 specifically, there is some difference, I think, between the statements

17 of the two witnesses. Does that answer your question, or did I confuse

18 you?

19 Q. No. So which two witnesses now are you talking about?

20 A. I'm talking about the witness that we were discussing earlier --

21 Q. Yes.

22 A. -- and I believe it was the one that was in the office area, I

23 believe.

24 Q. Okay. Now, you didn't see the ICTY statement taken from VG-31,

25 did you? You testified earlier when it was brought up that you hadn't --

Page 6535

1 you hadn't seen it.

2 A. That was the three-page document --

3 THE INTERPRETER: Would the speakers kindly not overlap.

4 THE WITNESS: Sorry. No, I had not seen that three-page document

5 before.

6 MS. MARCUS:

7 Q. So you don't actually know whether VG-31 may have clarified

8 something that was in the statement taken by the Bosnian police in the

9 interview with the ICTY investigators.

10 A. That's correct.

11 Q. Now, Mr. Jenkins, the APD has standard operating procedures in

12 place, I'm sure, like any police department which govern your law

13 enforcement activities. Is that correct?

14 A. Yes.

15 Q. You say in your report on --

16 JUDGE VAN DEN WYNGAERT: What's the APD, Ms. Marcus?

17 MS. MARCUS: The Albuquerque Police Department.

18 Q. You say in your report on page 8 as follows:

19 "With a time differential of two to four years after the

20 incidents, the opportunity to collect residue from explosive matter,

21 accelerants, and other time-sensitive evidentiary items was lost when the

22 investigators failed to do their due diligence at the scene. The

23 technical ability to collect these items was in use world-wide in the

24 time-frame from 1992 to 1994."

25 Is that correct?

Page 6536

1 A. Yes.

2 Q. Now, you also testified yesterday that:

3 "If you leave the scene before the scene is processed, it's

4 generally considered from that point forward that the scene has been

5 abandoned, and any evidence that is obtained subsequent to the time that

6 the scene has been released is of no value."

7 Is that correct?

8 A. That's correct.

9 Q. Now, in your jurisdiction, I presume that when a crime takes

10 place, one of the first things an investigator under your command would

11 do is to secure the area. Would that be accurate?

12 A. Yes.

13 Q. In fact, you described to us some of the steps, so I'm not going

14 to go through them at length, but basically, if I understood you

15 correctly, the investigator would observe the scene, photography, maybe

16 draw some sketches of the scene thereafter. Is that right?

17 A. Correct.

18 Q. And then you might advise the investigators under your command to

19 measure the room or the scene and thereafter take a visual inventory of

20 the evidence; is that correct?

21 A. Yes, ma'am.

22 Q. Now, while this is going on or immediately following this, your

23 investigators would identify victims and eye-witnesses and seek to

24 interview them, I presume.

25 A. Yes.

Page 6537

1 Q. And in your jurisdiction, each and every one of those interviews

2 is tape-recorded or simultaneously transcribed?

3 A. They're tape-recorded, yes.

4 Q. So just to be clear, every interview with any witness - I'm not

5 talking about suspects now - any witness that's done by APD officers is

6 tape-recorded and thereafter transcribed?

7 A. I can't speak to what all officers at APD do. I can only speak

8 to my experience, and the experience is that is not necessarily the case,

9 but then again, we are not investigating a war crime with such magnitude

10 where it is essential that all of this information be made available to

11 both sides. The gravity of the crime, even though homicide is so -- it's

12 a terrible thing, but in this particular instance we're talking about a

13 situation that is very explosive and the necessity for both sides to have

14 a fair and equal hearing and provide testimony before the Tribunal

15 outweighs any other considerations. And it just seems to me that given

16 that gravity those interviews should be tape -recorded and transcribed.

17 Q. So if I understand you correctly, you're suggesting that this

18 investigation in this context, every interview should have been

19 tape-recorded and transcribed, but actually in your practice back home,

20 that may or may not be actually done. Is that accurate?

21 A. Depending on the circumstances, it may vary.

22 Q. And during your time as deputy chief, were all witness interviews

23 for serious crimes tape-recorded and transcribed?

24 A. I can't speak because investigations were not under my command.

25 Q. Okay. And so then in the standard operating procedures, let's

Page 6538

1 say, of the APD, is there a provision which requires all witnesses who

2 are -- all interviews of witnesses of serious crimes to be tape-recorded

3 and transcribed?

4 A. There is no standard operating procedure to that effect.

5 However, in instances, for example, in internal affairs investigations,

6 because of the gravity concerning the allegations of misconduct, of

7 police misconduct, those interviews are tape-recorded and transcribed and

8 made part of the record for the very reasons that I've described here.

9 It is a matter of propriety and the appearance of propriety to the

10 community.

11 Q. And how about in homicide cases?

12 A. Homicide cases, again, it depends. If you're dealing with

13 someone that is speaking a second language, I would require my

14 investigators to tape those and have them transcribed because it's a

15 second language.

16 Q. So I think you said that you did interviews with an interpreter

17 five times in your career; is that right?

18 A. That I can think of.

19 Q. And those -- those were audio-taped and transcribed?

20 A. Yes.

21 Q. Thank you. Now, I suppose -- going back to the order in which

22 you would investigate a crime scene, I suppose that the victims or

23 eye-witnesses might be re-interviewed over time as the evidence is built,

24 is gathered; is that correct?

25 A. Possibly. It depends on the circumstance. What we would prefer

Page 6539

1 to do, I think, is to allow the witness the opportunity to make the best

2 possible statement they could the first time so that the information is

3 fully documented and not have to go back and repeatedly interview

4 witnesses. I would much rather have a statement from a witness that is

5 more contemporaneous with the events, while the memory is still fresh,

6 rather than a statement that is taken 10 or 15 years down the road, where

7 the memory has failed.

8 JUDGE ROBINSON: We're going to take the break now. Before we

9 break, can you tell me how long you'll be, Ms. Marcus?

10 MS. MARCUS: I would estimate about an hour and a half. I'll try

11 to make it less.

12 JUDGE ROBINSON: Thank you.

13 --- Recess taken at 12.10 p.m.

14 --- On resuming at 12.41 p.m.

15 JUDGE ROBINSON: In the absence of Judge Van Den Wyngaert,

16 Judge David and I sit pursuant to Rule 15 bis.

17 Ms. Marcus, to pick up the pace.

18 MS. MARCUS:

19 Q. Mr. Jenkins, over the break I was --

20 JUDGE ROBINSON: What I'd like to do is just complete the

21 evidence at this session, if it's possible.

22 MS. MARCUS: Yes, Your Honours. I'll do my very best.

23 Q. So Mr. Jenkins, at the break I was informed by the interpreters

24 that in spite of the warnings, we have not heeded them, so I'll try and

25 do my utmost, and I ask you to do the same.

Page 6540

1 A. My apologies.

2 Q. Now, we were talking about the process of investigations, for

3 example, in your jurisdiction, and we had come to your explanation of why

4 you would try to avoid re-interviewing witnesses more than once but that

5 sometimes it might -- it might be necessary to do so. Now, in the

6 context of these investigations, there might also be some search and

7 seizure operations in which you might recover some documentary evidence.

8 Would that be true?

9 A. Is there a specific type of investigation that you're referring

10 to?

11 Q. You know, your evidence has covered general criminal

12 investigative procedures. I'm trying to, as briefly as possible, review

13 my understanding, generally speaking, of what might be done and do a

14 comparison to the process that was undertaken here.

15 A. I think there's probably no comparison because the rules in my

16 jurisdiction for search and seizure involve the filing of affidavits and

17 obtaining search warrants from the court before seizure of evidence other

18 than seizure incidental to arrest or some of the specific caveats to the

19 search and seizure laws in the United States may apply, so it's -- it is

20 a different system of justice.

21 Q. Now, assuming the suspect is a fugitive, there will be, I

22 suppose, a search operation conducted for the fugitive which might be

23 running simultaneous to the actual substantive investigation. Would that

24 be correct?

25 A. I think that's a possibility.

Page 6541

1 Q. And what would you do to protect your witnesses while you are

2 searching for the fugitive?

3 A. It's a different system again. If we have some reason to believe

4 that the witnesses are in danger, they may be put under police

5 protection, but that's very rare. Other than that, I mean, there's no

6 protection per se granted to witnesses or victims of crimes in my

7 jurisdiction, but we don't have the same issues to deal with that you do.

8 Q. Now, if a crime scene is not secure, or, let's say, if part of it

9 is not secure, you will continue other aspects of the investigation, I

10 presume, those that you can do until such time as you can secure the

11 site. Would that be right?

12 A. Yes.

13 Q. And I suppose in your jurisdiction and in your experience, there

14 has never been a case where due to security risks you are physically

15 unable to investigate the crime scene until years after the crime took

16 place.

17 A. Well, we have cold case scenes like this but for other reasons,

18 being, you know, a body or bodies may be dumped in the desert in our part

19 of the world and not discovered for some time, you know, several years

20 down the road. But once they are discovered, then we would work the

21 crime scene as we've described in testimony.

22 Q. So what would you do in a situation where you had to investigate

23 a case involving a fugitive through interviewing witnesses, and you did

24 not have a photo of the fugitive?

25 A. I would try to obtain the best possible description of the

Page 6542

1 individual, and there's going to be -- somewhere in this community,

2 there's going to be someone that knows him to the extent that I can rely

3 on their description. It's going to be perhaps an associate, perhaps a

4 relative. Perhaps there's a photograph. There could be a police record

5 somewhere of when -- in this particular case when he was active with the

6 police, when he was mobilised. There should be some sort of

7 documentation somewhere, if we look, that will have his physical

8 description.

9 Q. And what do you do -- would you do any kind of identification

10 procedure with a witness who knew the accused very well, back home?

11 A. Okay. So if they're on a -- what we would call a first-name

12 basis in our country, if they are closely associated with one another and

13 they have more than a casual acquaintance, I would probably rely on that

14 identification.

15 Q. Now, Mr. Jenkins, you would agree with me, wouldn't you, that

16 there is a difference between conducting an internal investigation and

17 conducting other types of criminal investigations; would that be right?

18 A. The mechanics are the same. The purpose is different, but the

19 mechanics of how investigations are conducted are basically the same,

20 whether it's an internal investigation or it's a criminal investigation.

21 It doesn't really matter.

22 Q. Now, you've testified that you have quite a bit of experience

23 managing internal investigations. I presume that the internal

24 investigations that you managed, that the officers conducting that

25 investigation would have been privy to a great deal of internal

Page 6543

1 information. Wouldn't that be correct?

2 A. Yes. If by internal information you're referring to document

3 statements, standard operating procedures, confidential statements that

4 were taken as part of the investigation, yes.

5 Q. So by analogy, then, in this case, actually the task you were

6 asked to do by the Defence team for Milan Lukic was in fact an internal

7 investigation into the OTP methodology of its investigation. Would you

8 say that's accurate?

9 A. I would say there are a lot of similarities between the two.

10 Q. Thank you. Now, when you told us before that one of the first

11 things you would do back home in an investigation is to secure the

12 ground, this is something that's normally done by the APD; is that

13 correct?

14 A. Yes.

15 Q. So following a crime, there is the ability for you to - you as

16 the APD, let's say - to coordinate with as large a police team as

17 necessary to ensure the security of the site, including security of APD

18 personnel, security of victims and witnesses, et cetera. Would that be

19 correct?

20 A. It's a little misleading when you say as large a team as

21 necessary because we all have our restrictions as far as personnel

22 available to help us. But generally speaking, we have enough officers on

23 duty to generally secure a crime scene and ensure that there's no

24 contamination of the scene while the investigators arrive and they are

25 briefed on the situation, and the forensics teams are briefed on what

Page 6544

1 information the investigators have, and then they just -- they go their

2 separate ways and do their work.

3 Q. So have you ever faced a time where you had to call in the

4 military or the National Guard or some other security organ to secure a

5 crime site --

6 A. No.

7 Q. -- for the APD to investigate?

8 A. No.

9 Q. And this is -- this is perhaps in a way something that you might

10 take for granted in your jurisdiction, that for the most part, barring

11 some very huge calamities such as, I don't know, the World Trade Centre

12 disaster or something, that the APD will be able to secure its own

13 criminal investigation sites. Is that accurate?

14 A. APD would be able to do that. However, that consideration was

15 taken into account by me when I was reviewing the documents and the

16 overall case. I fully understand that this was a war zone, and I'm

17 sympathetic to that fact.

18 I also understand that standard operating procedures are a

19 guideline rather than a rule or rule of law. The problem is if you're

20 going to vary the procedure, there needs to be some documentation as to

21 why you didn't perform the tasks that you performed.

22 So if I can just take that one step further for you, let's

23 hypothetically say that there's an officer-involved shooting. There's a

24 gun battle similar to the -- if you're familiar with the armed robbery of

25 the banks in California. It's been on television for several years.

Page 6545

1 That basically was a running street battle between the Los Angeles

2 Police Department and the bank robbers. It's almost impossible given

3 that scenario to totally secure that crime scene because there are too

4 many civilians; there's too much going on at that scene. But at some

5 point in time, at some point in time, we -- the Los Angeles

6 Police Department was able to secure that scene to the point where that

7 scene could be processed properly.

8 So my contention is at some point in time, the scenes at Visegrad

9 were secure enough that the crime scene teams could have gone in and

10 processed that evidence safely, certainly more safely than could have

11 done in 1994, but at some point in time prior to 2009 they could have

12 gone in and processed that scene and possibly obtained some evidence that

13 would be of interest to the Court.

14 Q. Thank you, sir. Now, in studying this case, certainly you became

15 quite familiar with the context of the war in Bosnia.

16 A. Yes.

17 Q. Would that be correct? And so you will know that the country

18 suffered a three-and-a-half-year civil war with large-scale ethnic

19 cleansing. Do you know that?

20 A. Yes.

21 Q. And you will know that between approximately March and July of

22 1992, the Bosnian Muslim population of Visegrad dropped from 63 per cent

23 down to less than 5. Would you know that?

24 MR. ALARID: Objection, calls for speculation.

25 MS. MARCUS: I'm asking him if he knows it.

Page 6546

1 JUDGE ROBINSON: [Microphone not activated] ... knows it. It's

2 either within his knowledge or not.

3 Is that within your knowledge?

4 THE WITNESS: Those specific numbers are not within my knowledge,

5 Your Honour.

6 JUDGE ROBINSON: Well, let's move on.

7 MS. MARCUS:

8 Q. Are you aware that in the whole of Bosnia as of 2005, according

9 to the International Committee of the Red Cross, there were still more

10 than 14.000 persons listed as missing?

11 A. I have heard numbers similar to that, yes.

12 Q. Now, in your testimony you talk about Dr. Clark's work, and on

13 the last page of your report you state:

14 "If the investigators had used the same techniques described by

15 Dr. Clark and had documented their procedures and findings, the

16 Prosecution's case would be much, much stronger."

17 Do you still stand by that statement?

18 A. I do.

19 Q. Now, you testified that, to your knowledge, Dr. Clark was

20 conducting his work as of 1996.

21 A. I believe that's correct.

22 Q. But in fact, he did not begin conducting his work until 1999, and

23 that's been in evidence in this case. Did you know that?

24 A. The quotation that I used from Dr. Clark's report is the

25 knowledge that I have, and he says 1999 was the third year of the ICTY

Page 6547

1 exhumation programme, so counting backwards three seasons -- now, the

2 question is what is a season. Are we talking spring, summer, fall, when

3 the ground is not frozen, or are we talking back three years? I assume

4 he's going back three years.

5 Q. Now, you testified that -- you used the word "perfect" in

6 describing Dr. Clark's work in terms of its assistance to the

7 investigation. Now, did you receive any information, have you been

8 provided with any information about forensic examinations in Visegrad

9 being contemplated, but security did not permit that? Did you receive

10 any of that information?

11 A. No.

12 Q. So you actually did not receive any information about the reasons

13 why or why not certain steps were taken in the forensic analysis of the

14 site; is that correct?

15 A. That's correct.

16 Q. Now, if you had been presented, hypothetically speaking, with

17 some testimony from the head of the Bosnian Commission for

18 Missing Persons which said that there was strong evidence that bodies

19 from Pionirska and Bikavac had actually been physically removed and

20 buried somewhere else, would that --

21 MR. ALARID: Your Honour, we would object. Improper

22 hypothetical. Amor Masovic was suppressed.

23 MS. MARCUS: I think as a hypothetical question, regardless of

24 how the evidence comes in, I can put a hypothetical --

25 MR. ALARID: Assuming facts not in evidence.

Page 6548

1 JUDGE ROBINSON: Yes, the question may be put.

2 MS. MARCUS:

3 Q. So hypothetically speaking, if there had been that kind of

4 evidence, would that factor into your assessment of what might be

5 possible or might not be possible at the site?

6 A. Have we hypothetically positively identified beyond reasonable

7 doubt that the bodies that were recovered came from that scene? In other

8 words, other than just someone saying that person came from the scene,

9 have we absolutely positively identified that person as one of the

10 victims?

11 Q. Sir, when I ask you the question, I'm asking you about factors

12 you take into consideration in drawing your conclusions. So would it be

13 a factor that you would want to consider if there had been evidence that

14 the bodies from those sites have been moved? That's the simple question

15 I'm asking you.

16 A. It's a simple question. I'll try to give you a simple answer, in

17 that if that body has been identified as such within a -- within

18 reasonable doubt, then I would certainly consider that information,

19 absolutely. But if there are bodies buried literally all over Visegrad,

20 and I would want some sort of information or more than just a casual,

21 Well, there's a body, I believe it came from Pionirska; I would want some

22 sort of identification to satisfy myself that I was looking at a piece of

23 evidence from that scene.

24 Q. Mr. Jenkins, you are aware, I presume, by now, that although the

25 crimes charged in this indictment are alleged to have taken place in

Page 6549

1 1992, that the Tribunal was established in 1993, and the Office of the

2 Prosecutor in 1994. Were you informed of that?

3 A. Yes.

4 Q. And you were also similarly informed that the war raged in the

5 former Yugoslavia until December of 1995.

6 A. Yes.

7 Q. And you are aware that there was a peace accord signed at that

8 time which divided the country along ethnic lines into the Federation and

9 the Serb Republic.

10 A. The Dayton Accords?

11 Q. Yes.

12 A. Yes.

13 Q. And you are aware that unlike the APD, the ICTY did not and does

14 not have its own security force, and it's dependent upon --

15 JUDGE ROBINSON: Does -- sorry. I'm sorry. Does anyone have a

16 copy of the Statute?

17 MS. MARCUS: I do not, Your Honours.

18 [Trial Chamber and registrar confer]

19 JUDGE ROBINSON: All right. Please continue.

20 MS. MARCUS: Thank you.

21 Q. So I was saying that the ICTY was dependent upon local law

22 enforcement agencies and NATO to provide security for its field

23 investigations. Are you aware of that?

24 A. Yes.

25 Q. So you can understand that this means the Tribunal investigators

Page 6550

1 never actually controlled the ground in the way that you might be able to

2 do at home.

3 A. I understand that, yes.

4 Q. And did you know that although the ICTY standard operating

5 procedures placed a paramount priority on protection of witnesses and

6 victims and personnel, that NATO forces did not provide protection for

7 victims or witnesses. Are you aware of that fact?

8 A. I have not seen the SOP from the investigators, so I have no idea

9 what it says.

10 Q. And are you aware that the first investigative missions carried

11 out by ICTY investigators, not just for the Lukic case but ICTY

12 investigators, took place by helicopter with the investigators wearing

13 body armor and helmets with large-scale armed escorts.

14 MR. ALARID: Objection, Your Honour.

15 JUDGE ROBINSON: Yes, Mr. Alarid. What's the basis?

16 MR. ALARID: Well, these are improper facts, even from a

17 hypothetical perspective, to put before the witness, considering that no

18 evidence of these facts has come in through any witness such as the

19 helicopters and whatnot. And so based on that fact it asks the witness

20 to assume facts not in evidence, and/or it's making the Prosecutor a

21 witness, and she's merely testifying.

22 MS. MARCUS: Your Honour, this witness -- I'm sorry, sorry.

23 JUDGE ROBINSON: Go ahead.

24 MS. MARCUS: This witness was asked to -- he even said, to

25 essentially conduct what amounts to an internal investigation of the OTP.

Page 6551

1 He -- of the OTP's investigation. His report says that if he was

2 presented with additional information as to what occurred and what the

3 methodology was and what the factors were, that he might revise his

4 conclusions. As such, I think all of this is directly relevant to

5 Mr. Jenkins's assessment and he --

6 JUDGE ROBINSON: Yes, but is it relevant to the case? Now, I

7 have no concern at all about this witness conducting an OTP internal

8 investigation. That's really not that relevant to our exercise here. I

9 don't see the significance of this. Please move on, Ms. Marcus.

10 MS. MARCUS: Yes, sir.

11 JUDGE ROBINSON: And please concentrate on those aspects of his

12 evidence that go to the Prosecution's case, the evidence that it has led,

13 tending to make it more unreliable or less credible. I'm not interested

14 in OTP internal investigation, and in fact, I would characterise it as

15 not proper for the OTP to be using this exercise to defend itself against

16 a so-called internal investigation. That's not our purpose at all here,

17 and I've said enough about this gentleman's evidence for everybody to

18 understand the way that I see it.

19 MS. MARCUS: Yes, Your Honour. I quite understand.

20 JUDGE ROBINSON: The OTP does not have to defend its honour as

21 far as I'm concerned. It's irrelevant.

22 MS. MARCUS: And that is precisely the problem with the report

23 and with that aspect of this witness's extensive evidence about the

24 methodology because if his -- the record is replete with his assessment

25 of the methodology that was undertaken and critiques exactly that

Page 6552

1 methodology without having access to that information. And so that's --

2 I feel, Your Honours, with the greatest of respect, that since this

3 evidence has been led, unless his evidence, which is impugning the

4 methodology undertaken by the investigators, is going to be stricken from

5 the record that the Prosecutor's office has an obligation, in fact, to

6 contradict Mr. Jenkins's assessment of the methodology simply because

7 this is evidence that was extensively led and contained in his report,

8 Your Honours. The witness has himself said that this was sort of an

9 internal investigation. He comments on things that were missing --

10 JUDGE ROBINSON: What's the relevance of an internal

11 investigation to the question of the guilt or innocence of the accused,

12 Milan Lukic? I mean, this is something which Mr. Alarid had undertaken.

13 I really question the relevance of it, and I don't know why you need to

14 be bothered with it, unless, as I have said ad infinitum, ad nauseam,

15 that there are aspects of his evidence that affect the credibility, the

16 reliability of the evidence that the Prosecution has adduced.

17 Let's move on.

18 MS. MARCUS: Thank you, Your Honours.

19 One brief moment, please.

20 Q. Mr. Jenkins, you are aware that the accused in this case were at

21 large until 2005; isn't that true?

22 A. I am aware that they were at large, yes.

23 Q. And you were informed that until that time, it was thought that

24 the accused may still be present in the region?

25 A. I'm unaware of that. I'm just aware that there was an

Page 6553

1 international warrant issued for him.

2 Q. Are you aware -- I mean, you are aware, I would think, because of

3 the use of pseudonyms, that many witnesses in this case have been very

4 fearful of coming forward to give their evidence. Are you aware of that?

5 A. Yes.

6 Q. Now, you testified yesterday that you saw the video of the first

7 ICTY mission, which was admitted as an exhibit, 1D84, and you described

8 the military presence that you saw in that video. Is that correct?

9 A. Yes.

10 Q. So you do have some idea what the circumstances were like, and

11 you questioned why the investigators didn't enter, that they stopped at

12 the last moment at the door and didn't go in. Isn't that right?

13 A. Yes.

14 Q. Now, were you informed that apart from the hostility of the local

15 community to the ICTY, the area was thought to be mined or booby-trapped,

16 and thus NATO did not clear for access into the building.

17 MR. ALARID: Your Honour, I wouldn't be objecting had they

18 presented a single witness that laid this out, a single investigator to

19 tie the investigation together and explain the difficulties, the trials,

20 the tribulations that the OTP and its staff experienced in putting this

21 case together. But without such foundation, the questions are without

22 merit and not relevant.

23 MS. MARCUS: Your Honours, I can resolve this by rephrasing it

24 hypothetically if that will please the Court.

25 JUDGE ROBINSON: Yes. Yes.

Page 6554

1 MS. MARCUS:

2 Q. Mr. Jenkins, the same question in a hypothetical scenario.

3 Hypothetically speaking, had there been such an assessment that the area

4 was not secure and NATO making that decision, would you alter your

5 comment about this being something that was lacking at that particular

6 investigative mission?

7 A. No.

8 Q. And why is that?

9 A. NATO has the ability to call in bomb technicians or people that

10 can identify the location of the mines. If they felt that it was that

11 insecure, then they should have done a minesweep before they allowed any

12 of the NATO civilian or OTP personnel in that area to begin with.

13 Secondly, there are two windows on the side of that room where

14 video could have been taken through the open windows and at least had

15 some idea of what was inside.

16 Third, if they're that concerned about booby-traps and mines, why

17 were they walking on the first floor in an area that was also unsecured?

18 It could have just as easily been booby-trapped as the door going into

19 the room.

20 Q. Thank you, sir. Now, you've testified --

21 THE INTERPRETER: Microphone, please.

22 MS. MARCUS:

23 Q. Sorry. You've testified that there is no comparison, I quote

24 from you, no comparison between investigations back home and this kind of

25 an investigation. And so would you say, then, that if there is an area

Page 6555

1 that can never -- a crime scene area or multiple crime scene areas that

2 can simply never be accessed, let's say they can never be accessed

3 because the security situation never changes, an example, for example,

4 like Darfur may come up. Are you saying that a trial cannot go forward

5 at all based on evidence collected from witnesses outside of that crime

6 scene?

7 A. No. I'm not saying that at all. I mean, there is a possibility

8 that you could put together a circumstantial case. The problem is, as we

9 testified to earlier, is the consistency of the story among the

10 witnesses. There are so many inconsistencies and problems and loose ends

11 with their statements, and in this particular case, not being a

12 hypothetical, those issues could have been addressed as well as the

13 issues of the forensic evidence.

14 So in your hypothetical question, I think the answer is yes. You

15 can proceed with those provided you can get the necessary information to

16 go forward with trial. In the real-world situation here, the

17 investigators had the opportunity to search those crime scenes as they

18 should have and to tighten up the statements and the investigation in

19 such a manner that had been more effectively presented by the

20 Prosecution. I know that sounds bad, but believe me, as a

21 Prosecution-oriented person, I would want to give you the best possible

22 case I could to ensure conviction if in my mind I felt the defendant was

23 the perpetrator, and therein lies the difference.

24 Q. Now, sir, you would well imagine, or maybe you know for a fact,

25 that the Office of the Prosecutor's investigations unit is full of very

Page 6556

1 highly experienced police officers just like yourself. Are you aware of

2 that?

3 A. I really don't know outside of a couple of the investigators that

4 I've seen reports and -- but I don't -- I'm unfamiliar with the staff.

5 Q. Okay. So if I were to inform you that the current investigations

6 unit in the draw-down phase of the Tribunal has approximately

7 30 experienced senior-level police officers from 25 different countries,

8 would that surprise you?

9 A. What would surprise me is they didn't do a better job of

10 investigating this case with that kind of experience.

11 Q. So I presume in making that assessment that you asked the Defence

12 team to request a copy of the standard operating procedures?

13 A. I did.

14 Q. And what was their response?

15 A. I was told that no procedures manual was available.

16 Q. So to your knowledge, did the Defence team make that request to

17 the OTP?

18 A. I don't know.

19 Q. And did you request of the Defence team to interview the chief of

20 investigations, for example, in making your assessment of the

21 methodology?

22 A. I did not.

23 MR. ALARID: And I would object as improper and I would never

24 think I had the right to make such a request. Had I known, I would have.

25 JUDGE ROBINSON: Ms. Marcus.

Page 6557

1 MS. MARCUS: Yes, sir.

2 JUDGE ROBINSON: I have to take a position on this, regrettably.

3 I don't think any of this is helpful to the Tribunal in determining the

4 guilt or innocence of Milan Lukic. We may have been led down a path by

5 the Defence introducing this evidence, but why you're responding to it is

6 beyond me. It seems that what you're doing is defending the good name of

7 the Office of the Prosecutor, and I don't believe I should allow the

8 Tribunal's time to be used for that purpose. If you have questions to

9 ask him, again, for the hundredth or thousandth time, where his evidence,

10 the evidence that he gave in-chief might have affected your case, where

11 his evidence bored a hole in your case, put it to him.

12 MS. MARCUS: Your Honour, the final line --

13 JUDGE ROBINSON: I think it is irresponsible of me to sit here

14 and allow the Tribunal's time to be spent with your asking questions that

15 only affect the good name and reputation of the OTP.

16 MS. MARCUS: Thank you, sir. Then what I would submit, then, is

17 that the report is, at least in those portions, not admissible because

18 the final conclusion is that a failure on the part of the investigators

19 to live up to their professional responsibilities not only fails those

20 left behind, but it fails the victims.

21 JUDGE ROBINSON: Yes, it's a question of the weight that we

22 attach to it. It's a question of the weight that we attach to it. It's

23 premature for me to tell you what weight I would attach to that

24 statement --

25 MS. MARCUS: Thank you, sir.

Page 6558

1 JUDGE ROBINSON: -- but I don't think it affects the

2 admissibility of the report.

3 MS. MARCUS: Thank you, sir. I'll move on to different topics.

4 JUDGE ROBINSON: Yes.

5 MS. MARCUS:

6 Q. Mr. Jenkins, are you aware that memorialising interviews with

7 witnesses is done in a wide variety of ways in a wide variety of

8 jurisdictions?

9 A. Yes.

10 Q. And even within the US, in some jurisdictions witness statements

11 are never recorded.

12 A. That's speculation on my part, but I assume that's probably

13 correct.

14 Q. Now, in your report on page 4, you describe factors that you

15 considered or that could be considered in assessing witness credibility

16 in your opinion, and you mention that one factor might be whether a

17 witness might have a particular motive for providing a particular

18 testimony. You suggest that a witness who is a relative of a victim

19 might have a particular motive for providing false testimony. Is that

20 correct?

21 A. I think there's a variety of reasons why individuals come forward

22 if they have no direct knowledge of the incident, and I have since

23 learned since the time this report was given that the Court allows

24 hearsay, and that really speaks to that point.

25 Q. So when you said that one factor is whether a relative of a

Page 6559

1 victim might have a particular motive for providing false testimony, you

2 were not talking about a relative who was an eye-witness or, let's say,

3 another surviving victim, but, rather, somebody who has no direct

4 knowledge of the actual incident?

5 A. That's correct.

6 Q. So mightn't it have been appropriate to include that caveat in

7 your report when you described this as a factor to be taken into account?

8 A. I think it's inclusive in the overall critique. Each witness has

9 to be assessed as to what they have to say, how they came upon the

10 information, and how that information then has been brought forward.

11 There's always the possibility of witness contamination, particularly in

12 this group because we've had so many people displaced and taken to

13 refugee camps, families have reconnected, stories have been told and

14 repeated to the point where, even if by accident, if by accident there is

15 a misidentification and someone says, This person committed such and such

16 a crime, that is taken as the truth, and all of a sudden everyone seems

17 to repeat that whether it's true or not. And it could be simply

18 accidental misidentification and not intentional.

19 So you really have to get to the root of how the witnesses obtain

20 that information and who they've told. It's kind of like a

21 coffee-klatsch thing where, you know, everyone gets together and they

22 talk about the events of the day, and everyone just kind of assumes the

23 other person is telling the absolute truth even though they may have --

24 because of their observations or their biases or whatever, may see the

25 events slightly differently than someone else.

Page 6560

1 Q. Thank you, sir. Now, going along these lines of motives for

2 giving false testimony, someone who is related to an accused would be

3 likely to also be biased toward them and possibly offer false testimony.

4 Would you say that would be correct?

5 A. Yes.

6 Q. Now, you testified about victims groups and how membership in

7 victims groups might be a factor to take into account. You testified

8 that a victim who might be eligible for reparations following an armed

9 conflict might be motivated to fabricate evidence. Is that right?

10 A. Yes.

11 Q. So this suggests that in your opinion, a reparations regime or a

12 victim reparations regime would incentivise victims to perjure

13 themselves.

14 A. I think the possibility is there. I'm not saying that this is

15 absolutely the case because I have no evidence one way or the other. I'm

16 simply saying that that is a consideration that should be taken into

17 account when you're reviewing the witness's statement.

18 The country is very poor. People have lost their property.

19 They've lost all of their belongings, and the reparation is a very

20 important part of getting them back on their feet and reestablishing

21 their lives. But it's also a tremendous motive, when you think about it,

22 if I have nothing and if I can come forward and join this group and give

23 testimony and in turn receive reparation in exchange for my testimony,

24 then this needs to be weighed. It needs to be considered. The

25 information that the witness gives may be true and correct, but then

Page 6561

1 again, it just needs to be weighed out and see if the information is

2 accurate.

3 Q. So hypothetically speaking, if there were an International

4 Tribunal which set up a victims trust fund at the same time as

5 prosecuting the cases, you would suggest that that might call into

6 question the entirety of evidence in that kind of a context?

7 A. Not necessarily. Again, I think you just have to be aware of

8 that circumstance and the particular station in life that this person

9 has. Do they still have their property? It's just a motive that needs

10 to be considered, and if you --

11 JUDGE ROBINSON: Is there one at the ICC, such a fund?

12 MS. MARCUS: Yes, there is, sir.

13 JUDGE ROBINSON: There is. But if I were a lawyer for the

14 Defence at the ICC and you produced a witness who had received money from

15 this fund, I would still cross-examine him about it. It goes to

16 credibility. So the witness is perfectly correct, but nothing has been

17 said here that is new. I don't know why we need to be told about it. It

18 does go to credibility.

19 MS. MARCUS: Thank you, sir.

20 Q. Now, Mr. Jenkins, if a statement was given to an investigator

21 prior to the time that that victim either received funding or even became

22 eligible to receive funding through a victim group, would this change

23 your assessment of whether or not that factor should be considered?

24 A. I think you want to consider all of the factors that are

25 possible, and this list is not certainly a disqualifier, if you will, but

Page 6562

1 these are merely guidelines that the investigator should keep in the back

2 of their mind as they're talking with the witness, and to help filter or

3 to help identify the information. Why is the information being given?

4 Is the information true, correct, all of the -- just to check the

5 veracity of the witnesses and make sure that the best possible

6 information comes forward to the Prosecution.

7 Q. Thank you, sir. Now, Mr. Jenkins, you would probably agree that

8 providing to witnesses prepared statements for them to sign -

9 hypothetically speaking - would not only be contrary to a professional

10 code of ethics for an investigator or an attorney but could also

11 potentially be prohibited by law. Would you agree with that?

12 A. I would.

13 Q. So hypothetically speaking, if you were to discover that a

14 particular case had been primarily investigated by somebody who did just

15 that, that fact could call into question the integrity of that

16 investigation. Would you agree with that?

17 A. Yes.

18 Q. Now, I read through the lines in your report that if you saw --

19 JUDGE ROBINSON: It depends how the signed statement is

20 presented, in my view. If you have a signed statement and you take it to

21 a person and you take the person through it bit by bit and the person

22 agrees or disagrees with it, what's wrong with that? Eventually it will

23 be his statement. Or are you positing that the potential witness is just

24 presented with a signed statement and he signs it without any questions

25 being asked?

Page 6563

1 MS. MARCUS: Yes, Your Honour. And perhaps I should have been

2 more clear that this would be prior to the investigator having met that

3 witness before, so prior to the investigator having knowledge of what

4 that witness's evidence would be, upon the first meeting. That was the

5 context in that.

6 Q. And I presume, Mr. Jenkins, that's the context in which you

7 answered?

8 A. In my jurisdiction, that would be totally improper. In the

9 context of the Court's jurisdiction, I understand the rules are

10 different.

11 Q. Now, if you saw two or more witness statements which appeared to

12 be very similar in wording, content, sequence, order, et cetera, I think

13 you even addressed this, mightn't you conclude that these witnesses had

14 maybe gotten together and coordinated their evidence?

15 A. I think that's something to consider.

16 Q. Now, what would you say about a scenario, hypothetical scenario,

17 where an attorney for one of the parties was also serving as an

18 interpreter for interviews with witnesses?

19 A. You mean putting the attorney in a situation where they are a

20 witness themselves?

21 Q. Is that what --

22 MR. ALARID: Objection, beyond the scope of direct examination,

23 relevance.

24 MS. MARCUS: It goes directly to the Prosecution's --

25 MR. ALARID: Well, then I renew my motion to name the Office of

Page 6564

1 the Prosecutor for every Prosecutor that sat in with an interpreter on a

2 single witness's statement, and especially where statements changed over

3 time.

4 JUDGE ROBINSON: Thank you, Mr. Alarid. I'll allow the witness

5 to answer the question, but for my part, I don't see that it takes the

6 matter much further, Ms. Marcus.

7 MS. MARCUS: Yes, sir. I think we can accept Mr. Jenkins's reply

8 that he already gave.

9 Q. Now, Mr. Jenkins, you testified yesterday that in your report you

10 wrote that the bridge was unlit.

11 A. Correct.

12 Q. But now you testified that the bridge was in fact lit.

13 A. Correct. I amended the report as such.

14 Q. And why did you originally say that the bridge was unlit?

15 A. At the -- at the hotel that we were staying at when we were in

16 Visegrad is immediately next to the bridge. We are within 50, maybe a

17 hundred metres of the bridge, and in the two nights that I spent there

18 walking around in the area, I had never -- looking at the bridge, it

19 never registered with me that the bridge was lighted. It was dark. It

20 wasn't until I subsequently saw the photograph that we presented

21 yesterday which I actually saw that there were lights on the bridge, and

22 that was -- I saw that photograph two weeks ago.

23 JUDGE ROBINSON: May I say that's an example of a relevant issue.

24 Finally.

25 MS. MARCUS: Thank you, sir.

Page 6565

1 Q. Now, you made that assessment of the bridge being unlit in the

2 context of assessing the evidence of VG-114.

3 A. Correct.

4 Q. So you said: "She alleges the incidents occurred every night,

5 but the bridge is unlighted." Unlit.

6 A. Correct.

7 Q. So you took an observation that you made in 2009, and you used

8 that to comment on the credibility of a witness's testimony from 1992, a

9 witness's evidence relating to events in 1992.

10 A. Well, there's a little bit more to it than that, counsellor.

11 When we were in Visegrad, we had occasion to go to an area which is

12 immediately above the old bridge that provides an unobstructed view back

13 to the new bridge where these alleged crimes took place, and I took a

14 photograph of that.

15 When I got back to my office in Albuquerque, using Google Earth I

16 pulled up the area around Visegrad, and from the photograph that has been

17 presented in evidence that marks the spots, it's kind of a

18 black-and-white photograph that marks Bikavac, Pionirska, the old police

19 station, you can get a sense of the layout of the land. So using

20 Google Earth, I took one of the tools that's in that programme and

21 measured in metres from the Bikavac fire scene the approximate area where

22 the witness lived to the centre of the new bridge, and that is a distance

23 of 1.4 kilometres. And to the best of my knowledge, not having gone to

24 the actual location where VG-115 was at during this incident, so I can't

25 say whether or not it was a totally unobstructed view, but I can say that

Page 6566

1 from the scene at Bikavac, you cannot see the new bridge. So I hope

2 that's some clarification.

3 Q. So, sir, this is actually a perfect example. You wrote a report

4 as an expert, and in court you made two changes to that report on the

5 record. Is that right?

6 A. Correct.

7 Q. Now, the Defence asked you about those changes, and the

8 Prosecution has an opportunity to ask you about those changes; correct?

9 A. Sure.

10 Q. And now the Chamber can ask you questions if they wish, and

11 ultimately, they will make the final determination of what weight to give

12 that particular assertion; correct?

13 A. Yes.

14 Q. Your evidence has been tested in a court of law, and based on

15 this testing, an assessment will be done by the Chamber of your evidence;

16 correct?

17 A. Yes.

18 Q. Now, if someone were to be given your report alone without the

19 corrections that you made in court, and let's say those corrections went

20 to a very serious matter at issue in the case, they would not be getting

21 the full story. Would that be right?

22 MR. ALARID: And objection, Your Honour. Relevance, beyond the

23 scope, and he's asking for speculation, everything in the book.

24 MS. MARCUS: Your Honours, if you permit two more question --

25 JUDGE ROBINSON: Let's hear the actual question. She hasn't

Page 6567

1 actually reached the meat of the question.

2 THE WITNESS: Well, first of all --

3 MS. MARCUS: Thank you, Your Honour.

4 THE WITNESS: First of all, if you notice in the second paragraph

5 I leave open the option, as you had pointed out earlier, to re-examine

6 any evidence that came to my attention from the time that we were in

7 Visegrad up to and including the time of testimony. Now, the corrections

8 that were made in the report were corrections that I found myself and

9 wanted to make sure that I gave the Prosecution all of the information

10 that is available.

11 Now, as to the question of the -- I guess you would want --

12 probably from the Prosecution's side, you would want to categorise this

13 as somewhat misleading. I, on the other hand, would characterize it as

14 at the time the report was written, I had a good-faith report submission,

15 and I felt the information in the report at that time from cover to

16 cover, side to side, was true and correct. Since that time I found on my

17 own volition two errors that I felt needed to be addressed to the Court

18 so that they could weigh the evidence appropriately.

19 Q. Precisely. So now taking from what exactly you just said, you

20 testified that what you were provided with in making your assessment of

21 the Prosecution's case was, and I quote from yesterday:

22 "That included witness statements, and primarily that's it. I

23 mean, there were no other reports or documents to review or to support."

24 Now, you also said that you reviewed some photographs, and of

25 course you described your visit to the crime scene. That was the

Page 6568

1 evidence that you looked at; is that correct?

2 A. That's correct.

3 Q. And you had a very -- you described the amount of material as

4 quite voluminous.

5 A. Yes.

6 Q. And it would have been quite a challenge, I presume, to read

7 every single word of all the material you were given; is that correct?

8 A. That's correct.

9 Q. Now, of the statements that you were given, were you informed

10 which statements were taken by the Office of the Prosecutor, which ones

11 were taken by other law enforcement agencies, and which statements were

12 taken by non-governmental organisations?

13 A. I was not advised of that, no.

14 Q. Were you informed which of the statements that you reviewed were

15 confirmed under oath before this Chamber and therefore tested in court --

16 JUDGE ROBINSON: Mr. Alarid.

17 MR. ALARID: Your Honour, I would object. We've given the

18 Prosecution a complete list of the statements that we gave, and I think

19 the witness can read. And I believe on the top of every one of those

20 statements, that information is on there.

21 MS. MARCUS: Is the Defence counsel giving testimony -- an

22 alternative answer to what Mr. Jenkins --

23 MR. ALARID: I seem to be put in that position constantly and

24 this line of questioning considering the fact it is, does put me in the

25 position of being a witness, considering the allegations and the basis

Page 6569

1 thereof.

2 JUDGE ROBINSON: Mr. Alarid --

3 MR. ALARID: Over and over again, the Defence has been the basis

4 of slander by the Prosecution.

5 JUDGE ROBINSON: Mr. Alarid, please sit.

6 Witness, please answer the question.

7 THE WITNESS: Could you repeat it, please?

8 MS. MARCUS:

9 Q. Yes, just a moment. My question was, were you informed which of

10 the statements you were given had been confirmed under oath and tested in

11 court and which ones had not?

12 A. No.

13 Q. And so you were also not told which of those statements you

14 reviewed had been admitted and accepted by the Chamber and which ones had

15 not?

16 A. No. I looked at all the statement in their totality. If I had

17 multiple statements for one witness, I examined all of the statements

18 side by side.

19 Q. In fact, having reviewed carefully the material that was given to

20 you by the Defence, it seems to me that with the exception of one, and

21 now maybe two, witness testimony from this trial, you did not review,

22 generally speaking, the witness testimony in this case.

23 A. That's correct.

24 Q. So your opinion as to inconsistencies in witness evidence is

25 based purely upon review of preliminary and sometimes unconfirmed

Page 6570

1 statements of witnesses taken by the Office of the Prosecutor and by

2 other agencies; is that correct?

3 A. The statements I reviewed were statements that were taken along

4 the way, depending on when the witness was first identified as having

5 information, so I guess the short answer would be yes.

6 Q. So your opinion as to the "failure to test the witness

7 information," which is on page 8, and your "rush to judgement" by the

8 investigators is something you arrived at without having the benefit of

9 having reviewed the trial record; is that correct?

10 A. That's true. I did not -- I did not have the trial record

11 available to me.

12 Q. So any corrections that any of those witnesses may have made

13 before this Chamber in good faith to their prior statements was not

14 something that you were provided with in your assessment; is that

15 correct?

16 JUDGE ROBINSON: Mr. Alarid.

17 MR. ALARID: Objection to the characterization of good faith.

18 MS. MARCUS: It was because Mr. Jenkins commented on his

19 good-faith corrections.

20 JUDGE ROBINSON: The point is a very valid one. Let us hear the

21 witness's answer.

22 THE WITNESS: My evaluation of the evidence or of the statements

23 that we're discussing here without the trial record simply was to test

24 the side-by-side credibility of the witnesses, how many different stories

25 did the witnesses tell, did the evidence that was evident in photographs

Page 6571

1 and through our site visits, did it match what the witnesses were saying,

2 but as to any corrections that were made in Court, I was not privileged

3 to that information.

4 MR. ALARID: And Your Honour, for the record, I felt specifically

5 with this particular witness, given the range of his expertise, I thought

6 it would be improper to give him the current trial testimony because to

7 bring him in here and have him comment on said testimony would be asking

8 him to interfere with your purview in the court, and I figured it would

9 receive a proper objection.

10 JUDGE ROBINSON: Yes, Ms. Marcus. How much longer, Ms. Marcus?

11 MS. MARCUS: I would say maximum 15 minutes, maybe less. I'll

12 really try my best, Your Honour.

13 JUDGE ROBINSON: Okay. And then will there be any

14 re-examination, Ms. O'Leary?

15 MS. O'LEARY: Your Honour, we maybe have five to ten questions.

16 It could be completed in ten minutes.

17 JUDGE ROBINSON: All right. We'll see how we get on.

18 MS. MARCUS:

19 Q. So Mr. Jenkins, some of these issues of testing witness

20 credibility, motives, and all the factors that you describe need to be

21 taken into account may very well have all been tested out here at trial

22 by the parties, such that the totality of that witness's evidence

23 including all of the factors you've included are before the Chamber.

24 Isn't that possible?

25 A. That is a possibility, yes.

Page 6572

1 Q. And would you agree that if you had been, as you provide in your

2 report, if you had been provided with the trial record where you could

3 see which statements were admitted and which weren't, which ones were

4 confirmed, where the alterations were made, how the witness's

5 testimony -- evidence was tested at court, you might have drawn

6 completely different conclusions; would you agree?

7 A. That's a possibility.

8 MS. MARCUS: One brief moment, Your Honours.

9 Q. Mr. Jenkins, we alluded earlier today to the criticism that the

10 APD has come under over the years, and you said that this is common to

11 most police departments. Would you say that's correct?

12 A. Yes.

13 Q. In fact, the APD has come under quite substantial criticism for

14 cases relating to destruction or disappearance of evidence and also quite

15 a large number of alleged criminal cases committed by APD police officers

16 over the years; is that correct?

17 MR. ALARID: Objection, relevance.

18 JUDGE ROBINSON: What's the relevance, Ms. Marcus?

19 MS. MARCUS: It will be two questions, Your Honours, and it goes

20 to Mr. Jenkins' understanding of realities faced in investigations. He

21 has assessed the investigation here, so it will be two questions covering

22 this.

23 JUDGE ROBINSON: The realities of investigation here.

24 MS. MARCUS: No. He is commenting on the integrity of the

25 investigation. It is two questions going to --

Page 6573

1 JUDGE ROBINSON: Okay. Proceed.

2 MS. MARCUS: Thank you, sir.

3 Q. Sir, do you have an idea approximately how many cases, how many

4 criminal cases were brought against APD police officers during your time

5 within the APD?

6 A. During my entire tenure?

7 Q. Yes, sir.

8 A. I can think of six or seven cases from the time I began until I

9 left the department where criminal charges were brought.

10 Q. Thank you. And can you estimate approximately how many lawsuits

11 were brought against the city or the APD relating to conduct of police

12 officers?

13 MR. ALARID: Objection, relevance.

14 JUDGE ROBINSON: Are you coming to the relevance?

15 MS. MARCUS: I'm going to conclude.

16 JUDGE ROBINSON: Okay.

17 MS. MARCUS: Can I ask the witness to answer that one question?

18 Then I will conclude.

19 JUDGE ROBINSON: Yes. Yes.

20 MS. MARCUS: Thank you.

21 Q. Could you answer that question, sir?

22 A. I can't answer that question because many of the complaints that

23 are filed or the notices that are filed are handled by the city's legal

24 department before they ever get to -- before they ever got to my office,

25 and before my time as -- my appointment to the rank of deputy chief, I

Page 6574

1 was not in that chain of command, so I really have no idea how many

2 lawsuits were filed.

3 Q. Thank you, sir. I have just two more questions for you. If you

4 had been provided with the full trial record and if it had been possible,

5 also, to review the standard operating procedures, to have perhaps an

6 interview with the chief of investigations, to review standards that are

7 used in international criminal investigations, is it possible that the

8 conclusions you reach in your report might have been entirely different

9 than the ones that you actually did reach?

10 A. And we're speaking hypothetically?

11 Q. Yes, sir.

12 A. Hypothetically, anything's possible.

13 Q. So you would agree, then, as Judge Robinson discussed earlier

14 that even in a case where there has been perhaps an imperfect

15 investigation, there could still be enough evidence to prove guilt?

16 A. Yes.

17 Q. Thank you, sir.

18 MS. MARCUS: No further questions, Your Honours.

19 JUDGE ROBINSON: Thank you.

20 [Trial Chamber and legal officer confer]

21 JUDGE ROBINSON: I'm advised that it's -- we should return at

22 2.15 because I, in the break, will be given a lot of information to

23 assist me in the management of the case and the decisions for next week,

24 so we'll adjourn. That doesn't mean, Ms. O'Leary, that you should take

25 longer than is necessary in re-examination.