1 Friday, 27 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 8.53 a.m.
5 JUDGE ROBINSON: Mr. Alarid.
6 MR. ALARID: Yes, Your Honour. I don't mean to slow things down
7 at all, but a brief issue. At the end of the day yesterday, you ordered
8 us by noon to do the annex to our request for assistance -- excuse me,
9 for our Rule 54 petition, and we should go into private session.
10 JUDGE ROBINSON: Private session, yes.
11 [Private session] [Confidentiality partially lifted by order of Chamber]
12 THE REGISTRAR: We're in private session, Your Honours.
13 MR. ALARID: And per the order of the Court, we could not
14 discuss -- or we did not contact Mr. Jenkins, but he actually made the
15 request to (redacted) on our behalf, and so we would
16 need that annex from him, and we need it to do that, so what we hope to
17 do is if you'd just give us leave to -- at the first break to make
18 arrangements, I think, by accessing e-mails and whatnot we can make that
19 happen. But that was the one thing we want to bring up.
20 JUDGE ROBINSON: Yes, I'll give you that leave.
21 MR. ALARID: Thank you, Your Honour.
22 JUDGE ROBINSON: Now, Ms. O'Leary, I was once a young Prosecutor,
23 and nothing annoyed me more than to come to court with my own strategy
24 for leading the evidence worked out and to be told by the judge to adopt
25 another approach. What I would suggest is that we stop hearing from
1 Mr. Jenkins about the general principles of investigation and take him
2 straight directly to the areas that he identifies as weaknesses in the
3 Prosecution's investigation, and in particular, if he's able to, to say
4 why that particular method would tend to make the evidence gathered
5 unreliable because ultimately that is what we will be interested in. So
6 let him go immediately to the house and say, I saw this, or I didn't see
7 this, and this is not in accordance with general accepted practice; but
8 more important than that for us, whether it is in accordance with his own
9 practice, is why it is unreliable, why the evidence gathered is
11 MS. O'LEARY: Thank you, Your Honour. Would it be acceptable if
12 we go site by site?
13 JUDGE ROBINSON: Yes.
14 MS. O'LEARY: Thank you. We'll proceed that way. Oh, and I
15 believe we need to go in open session, Your Honour.
16 JUDGE ROBINSON: Yes.
17 [Open session]
18 THE REGISTRAR: We're in open session, Your Honours.
19 MS. O'LEARY: And I'm not certain if it is for other people, but
20 the LiveNote is not working on our side.
21 WITNESS: CLIFFORD JENKINS [Resumed]
22 Examination by Ms. O'Leary: [Continued]
23 Q. Good morning, Mr. Jenkins.
24 A. Good morning, Counsellor.
25 Q. Let's go back to where we ended your testimony yesterday, then.
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
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
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
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.
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?
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
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
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
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.
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
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
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.
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
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
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
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
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.
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
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
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
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
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
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
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
25 A. In this condition?
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
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
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
1 if we call up 1D00-0021.
2 Q. What can you tell -- how much time did you spend at the Bikavac
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
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
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
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
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 --
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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?
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
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
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
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
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?
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
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
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.
1 JUDGE ROBINSON: What does all this have to do with the case?
2 The fault is not yours. Mr. Alarid is rising, as indeed he should. What
3 does all this have to do with the case that we are trying? This is not a
4 university seminar in which we are looking into the short-comings of the
6 MR. ALARID: Your Honour --
7 JUDGE ROBINSON: It would be relevant there.
8 MR. ALARID: Your Honour --
9 JUDGE ROBINSON: I am trying a case in which I have to determine
10 the guilt or innocence of Mr. Lukic.
11 MR. ALARID: Well, Your Honour --
12 JUDGE ROBINSON: I want evidence that will help me in that. This
13 doesn't help me at all.
14 MR. ALARID: Your Honour, in my jurisdiction, every homicide
15 case is --
16 JUDGE ROBINSON: I don't care what you do in your jurisdiction.
17 MR. ALARID: Well, Your Honour, I'm turning this case into what I
18 believe is at least addressing some real concerns with regards to the
19 investigation in homicide cases.
20 JUDGE ROBINSON: I am going to take the adjournment now, and you
21 consult with Ms. O'Leary. If the rest of the examination-in-chief is
22 along those lines, I'm going to stop it. It is not helpful. I have told
23 Ms. O'Leary time and again that the Chamber's only interest in what this
24 very experienced gentleman has to say is if it bores a hole in the
25 Prosecution's case.
1 There's no point telling me that the investigation could have
2 been better, that best practices were not followed. I want to know
3 whether as good as the investigation was or as bad as it was, it doesn't
4 meet the required standards of the Court, and he's not helping us with
5 that. When the trial is finished, you may wish to conduct a seminar into
6 the Prosecution's investigation and excoriate them. That's all well and
7 good, but it is -- frankly it is not -- I do not see it as helping us.
8 MR. ALARID: Your Honour, if I wait to that point, then the
9 benefit to my client is gone.
10 JUDGE ROBINSON: There's no benefit to your client from what I
11 have heard.
12 MR. ALARID: Your Honour, you cannot make a decision in a vacuum.
13 You cannot make a decision in a vacuum. You have --
14 JUDGE ROBINSON: I have not seen any benefit. If I were the --
15 just a minute. If I were the Prosecutor, I would not cross-examine.
16 MR. ALARID: Your Honour --
17 JUDGE ROBINSON: I'm going to take the break now, and you must
18 bring this gentleman to shortcomings in the investigation which impact on
19 the Prosecution's case, which tend to make it more unreliable, less
20 credible. I am not interested -- the Chamber is not interested in
21 general principles of investigation. We are not interested in evidence
22 which only shows the shortcomings of the investigation. You may have a
23 sloppy investigation and yet still have enough evidence that proves
25 MR. ALARID: Your Honour, I'll --
1 JUDGE ROBINSON: That's perfectly possible --
2 MR. ALARID: Your Honour, I have -- [Overlapping speakers].
3 JUDGE ROBINSON: -- and that is why -- that is why it is
4 important for him to tell us how it relates to the evidence, but you have
5 not brought him here to do that. So we take the adjournment now for
6 20 minutes, and when you come back you see whether we can proceed along a
7 more profitable line for these proceedings.
8 --- Recess taken at 10.16 a.m.
9 --- On resuming at 10.42 a.m.
10 JUDGE ROBINSON: I have reconsidered the position that I
11 expressed before the break. First, one of my colleagues has reprimanded
12 me for dealing with Ms. O'Leary more severely than Mr. Alarid.
13 MR. ALARID: If anyone deserves it, I do, Your Honour.
14 JUDGE ROBINSON: But I am reconsidering the position because I
15 see there is another way of looking at the witness's evidence. He is
16 giving evidence about shortcomings in the investigation. It is true that
17 he has not been asked to link it specifically to the Prosecution's case.
18 Maybe he can; maybe he can't. He perhaps doesn't know what that evidence
19 is, but Mr. Alarid can still in his closing submissions allude to this
20 witness's evidence and submit, for example, if there was no DNA, then
21 particular consequences would flow from that. But I would still believe
22 that where he can show how the shortcomings weaken the Prosecution's
23 case, if he has the capacity to do that, that he should do that.
24 So please proceed.
25 MS. O'LEARY: Thank you, Your Honour. As always, I appreciate
1 your guidance, and I think we can make this pretty brief, almost
2 finished, and try to wrap it all up. Thank you.
3 Q. Mr. Jenkins, proceeding as the Trial Chamber has discussed, why
4 don't we go scene by scene of the three incidents and sort of tie it all
5 together with your frame of reference as an investigator.
6 Looking at Varda, I know you had the opportunity to look over
7 several witness statements, and you made a site visit. From an
8 investigator's point of view, what shortcomings are there in the
9 investigation that will impact on the Prosecution's case in your mind?
10 A. The location of the two female witnesses located on the
11 balconies, if you recall the photograph that was on the screen a few
12 moments ago, the two witnesses that are used are some distance from the
13 scene, and -- pardon me. Could I have the pen? Thank you. And just to
14 refresh everyone's memory since the break, we're talking about the
15 witness in this house and the witness in this house. There is some
16 distance involved here that may or may not be relevant, but certainly
17 with this particular witness, she is looking a considerable distance to
18 try to make identifications of the individuals that are involved in this
19 incident. Same with this lady, although the distances are less.
20 But the fact of the matter is, there were other witnesses that
21 were actually inside the factory at the time that the raid took place and
22 supposedly the gentlemen were arrested and taken out, and that
23 information was apparently discarded in favour of the statements from the
24 witnesses that were further away. As an investigator, I think all of
25 those statements, all of that information should be evaluated and
2 Q. How can that make the Prosecution's case more or less reliable?
3 A. Well, from my perspective it could only make it that much more
4 reliable because you have eyewitnesses inside the factory that actually
5 viewed the events that took place, rather than relying on two casual
6 witnesses that are some distance from the scene.
7 Q. When you discuss the statement that was not used or utilised in
8 this case, can you refer to the pseudonym that you're speaking of?
9 A. I believe it's VG-58, I believe.
10 Q. Are you -- is it --
11 A. I'm not sure.
12 Q. If the name is easier, I'm not certain, but we would have to go
13 into private session.
14 A. I would suggest private session.
15 JUDGE ROBINSON: Private session.
16 [Private session] [Confidentiality lifted by order of Chamber]
17 THE REGISTRAR: We're in private session, Your Honours.
18 MS. O'LEARY:
19 Q. And just very briefly, then, in private session, what would be
20 the name of the statement that you reviewed?
21 A. Well, I don't have the notes in front of me from which to refresh
22 my memory, so I would ask if counsel has any information to help me
23 identify. I don't have the -- I don't remember the VG number of the
24 individual, but I'm aware and remember the incident, but I don't have
25 that documented specifically in my report.
1 MS. O'LEARY: With Your Honours' permission, I believe we can
2 pull the statement on the screen; otherwise, we can move on to -- however
3 you'd like to proceed on this.
4 MS. MARCUS: Your Honours, the Prosecution would object to this
5 statement being brought into evidence in this fashion.
6 MS. O'LEARY: We don't necessarily need to bring it into
7 evidence, Your Honour. We can just discuss it peripherally.
8 JUDGE ROBINSON: Very well.
9 MS. O'LEARY: We can go out of private session, then, if we're
10 not going to discuss any names.
11 JUDGE ROBINSON: Public session.
12 [Open session]
13 THE REGISTRAR: We're in open session, Your Honours.
14 MS. O'LEARY:
15 Q. Without listing the names, then, or any references to which
16 statement it may be, can you tell us what evidence was left out that you
17 feel would have assisted?
18 A. The identification of the victims, first of all, by name; and
19 secondly, the interaction that took place inside the factory and what
20 that eye-witness saw as far as the actions of the defendant. Those will
21 all be critical to -- to the investigation. I think it would speak
22 directly to the incident.
23 Q. Do you know where this person would have been located?
24 A. I believe he was on the factory floor with the coworkers, and I'm
25 not -- I don't know how far or what the distance was. That information
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
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
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
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.
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
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
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
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
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
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
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
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
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,
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
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
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
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.
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
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
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
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.
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
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?
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,
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
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
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.
1 [Trial Chamber confers]
2 JUDGE ROBINSON: Ms. O'Leary, the Chamber will not allow this
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
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
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
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,
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
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 --
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
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 --
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
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 --
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
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?
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?
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
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
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
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.
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
19 MS. MARCUS:
20 Q. Yes, sir. Maybe I could -- I don't mean to interrupt you but
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
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
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?
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
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
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
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
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
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
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
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
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 --
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
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?
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.
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
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
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
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.
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
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.
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
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
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
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
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
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
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
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
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.
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.
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
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.
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
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
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
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.
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
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
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.
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
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
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
1 highly experienced police officers just like yourself. Are you aware of
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
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.
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.
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
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
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
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
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.
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
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
1 again, it just needs to be weighed out and see if the information is
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
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?
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
8 A. In my jurisdiction, that would be totally improper. In the
9 context of the Court's jurisdiction, I understand the rules are
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,
24 MS. MARCUS: It goes directly to the Prosecution's --
25 MR. ALARID: Well, then I renew my motion to name the Office of
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
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.
25 MS. MARCUS: Thank you, sir.
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
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;
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
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
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
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
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
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
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
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.
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
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 --
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
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
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.
1 MS. O'LEARY: No, Your Honour. It'll be very brief.
2 JUDGE ROBINSON: Okay.
3 MR. ALARID: Your Honour, I just request -- and it may be
4 relevant for redirect on this witness, I request a clarification from the
5 Prosecution as to whether or not they objected to the introduction of the
6 SOPs that we had available through Mr. Ib Jul Hansen, or did they consent
7 and stipulate to their admission?
8 JUDGE ROBINSON: What's SOP?
9 MR. ALARID: Standard operating procedure, and they -- because
10 during the last question in litany -- this witness had the opportunity to
11 review the SOPs of the Office of the Prosecutor investigators as posed to
12 them, and I believe the Prosecution objected to the introduction of that,
13 but I could be mistaken. That's why I'd ask for the clarification.
14 JUDGE ROBINSON: Did you object?
15 MR. GROOME: Your Honour, Mr. Alarid can check the transcript as
16 easy as any of us. I wouldn't want to rely on my memory. We've had many
17 witnesses now in this case.
18 JUDGE ROBINSON: Very well. You heard that, Mr. Alarid. We are
19 adjourned until 2.15.
20 --- Recess taken at 1.42 p.m.
21 --- On resuming at 2.18 p.m.
22 JUDGE ROBINSON: Yes, Ms. O'Leary.
23 MS. O'LEARY: Thank you, Your Honour.
24 If we could have 1D216 on the screen right away and that related
25 to the photo.
1 Re-examination by Ms. O'Leary:
2 Q. I can ask you a couple of other questions in the meantime while
3 it comes up, Mr. Jenkins.
4 You were asked about if you'd seen any of the trial testimony in
5 this trial. When an investigator is looking at a file, does he typically
6 have the benefit of trial testimony?
7 A. No.
8 Q. In discussing the record of the interviewing processes, and there
9 were some questions about when you would record, I believe you mentioned
10 the gravity is weighed and involved in whether it would be recorded, when
11 can you give an example or when can you imagine that you in your own
12 jurisdiction would not record a witness statement?
13 A. If it's a low-level property crime perhaps you might not record
14 it but certainly in a homicide investigation, the witnesses, suspect,
15 those would all be recorded and saved for posterity. Even though the
16 statement that's actually taken may be drafted by the investigator,
17 reviewed by the witness, and signed, but there is a -- there is a
18 recording of the interview and a recording of the session where the
19 statement is taken, that is preserved and tagged into evidence.
20 Q. Thank you. There is now the photograph on the screen that you
21 indicated was the Varda scene and you had marked on. Can you give us an
22 idea of what you saw when you were there as being the square footage of
23 the entire factory, rough estimate of how big it is?
24 A. It's millions of square feet. It's huge. I'm not sure how far
25 back beyond the factory the property goes. If we are talking about the
1 square footage or square metres of that entire facility, I have no idea.
2 It's immense.
3 Q. Thank you. But in relation to the size of that property, if the
4 charges are, as in the indictment here, that two people entered the
5 factory and forced seven men to go to the river-bank, how many people
6 would you expect to undertake such an activity of going into a property
7 of this size and undertaking --
8 MR. GROOME: Objection, Your Honour. I believe this is beyond
9 the scope of cross.
10 JUDGE ROBINSON: Doesn't arise, Ms. O'Leary.
11 MS. O'LEARY: Thank you, Your Honour. I'll move on.
12 Q. Regarding other hypotheticals that you heard today, there was a
13 hypothetical posed by the Prosecution that the bodies could have been
14 moved, and they had wondered if you had taken that into consideration.
15 Can you also imagine a possibility, then, that these two fires did not
16 happen at all?
17 A. That is a distinct possibility as well.
18 Q. Thank you. And thank you for coming today, Mr. Jenkins.
19 MS. O'LEARY: Your Honour, I have no further questions but I do
20 want to move to admit his full report, the full photo and index that was
21 an addendum and filed, and renew the request to admit the two statements
22 of VG-31 as relevant to the testimony heard here today.
23 JUDGE ROBINSON: We'll admit his report, the photo and index that
24 was an addendum and filed. What are the two statements of VG-31?
25 MS. O'LEARY: VG --
1 MR. GROOME: Ms. O'Leary can correct me if I'm wrong, one, I
2 believe, was an ICTY statement; one was the statement taken by the
3 Bosnian authorities. I think we've discussed this matter before and so
4 though there is a general exception to hearsay where lex specialis
5 dictates that where there is a specific provision in the rules to deal
6 with this, and this is written evidence, those are the procedures that
7 would be followed. Otherwise, both parties could call a single witness
8 and introduce reams of recorded statements, the Chamber would be denied
9 opportunity to evaluate their credibility and the parties would be denied
10 the opportunity to cross-examine those witnesses.
11 MS. O'LEARY: Your Honour, in this case, I would just add that
12 this is very specific to the underlying testimony that was heard here
13 today, both in direct and in cross, as far as the materials he reviewed
14 and how it affected his investigative eye on the situation of Varda.
15 MR. GROOME: Your Honour, with respect to that, I would say that
16 Mr. Jenkins has commented on the specific portions of the statement that
17 he found relevant. They are a matter of the record. I think he may even
18 have para-phrased some sections, so I don't believe there's any need to
19 introduce the other portions of the statement. Again, this was a person
20 that was on the witness list of the Defence. They expressed some
21 difficulties in contacting the person, but it seems that they made the
22 decision not to call them when the Chamber put a limit on the number of
23 total witnesses that could be called. So it was a strategic -- not sure
24 of the reasons --
25 JUDGE ROBINSON: Which of the 92s you say the statement could
1 have been admitted under?
2 MR. GROOME: Well, Your Honour, I would submit that either 92 bis
3 or 92 ter an application could be made. If they could not contact the
4 witness, I think then that the appropriate way to proceed would be
5 92 quater, give us an opportunity to evaluate how genuine the efforts
6 were to contact this witness. I don't know whether they ever made a
7 request of the Bosnian government or whatever country -- the government
8 of whatever country they believed person lives in, for their assistance
9 in contacting the witness, or is it simply that they have took cursory
10 efforts to call a phone listing and were unsuccessful. I think its
11 admission under 92 quater would be very dependent upon the significance
12 of the efforts to locate the witness and secure their testimony.
13 JUDGE ROBINSON: You are saying it can't be admitted under 89 --
14 the provision, is it 89(F), the provision for written statements, because
15 there is a lex specialis, and that is what the 92 provisions were
16 intended to deal with, specifically. No, we have a lot of case law on
18 MR. GROOME: Well, Your Honour, 89(F) -- I think the plain
19 reading of 89(F): "The Chamber may receive the evidence of a witness
20 orally or, where the interests of justice allow, in written form." I
21 mean, I guess I would read that, Your Honour, as a witness in the case,
22 not any witness of any statement. I think to give that the meaning --
23 I'm not familiar with the jurisprudence arising out of this particular
24 section, but it would seem to me any interpretation of this that in
25 effect gave the Chamber broad authority to simply conduct a trial by
1 adopting statements that didn't comport with the requirements of 92 bis
2 or quater, I would have difficulty understanding that that is the
3 rationale underlying the rule.
4 JUDGE ROBINSON: I'm still going to reserve on it and I'll give
5 the decision on Monday.
6 MR. ALARID: And, Your Honour, for the record, I mean, I feel --
7 I find it really difficult to understand why the Prosecution would take a
8 witness that they achieved VG and pseudonym status for, that is tendered
9 despite the fact that it was ICTY witness that achieved VG status for,
10 they tendered this information in a batch of disclosures that comes to us
11 in August, after the trial started, and then continue to obstruct our
12 ability to present this witness when the reality is this witness is a
13 pseudonym witness under their, really, control. They have access to the
14 witness, they have the 20 offices in 25 countries or 30 investigators
15 that can run all over the world and assist us, and yet we've been forced
16 to play hide the ball with some really relevant testimony. And the fact
17 that they should move to exclude it under a technicality at this juncture
18 considering the matter of which it was tendered and the fact that this is
19 their witness, this is their witness and they would hide from that fact
20 by objecting to it --
21 JUDGE ROBINSON: Thank you.
22 MR. ALARID: -- in a court where hearsay is admissible.
23 JUDGE ROBINSON: Thank you, Mr. Alarid.
24 MR. GROOME: [Microphone not activated] ... so my silence isn't
25 misinterpreted. Much of what Mr. Alarid says. I would take great issue
2 JUDGE ROBINSON: Mr. Jenkins, that concludes your evidence. We
3 thank you for coming to the Tribunal to give it. You may now leave.
4 THE WITNESS: Thank you, Your Honour.
5 THE REGISTRAR: Your Honours, now the report of the witness which
6 is 1D22-0696 will become Exhibit 1D218. And photo annex, both of which
7 have been marked for identification today as 1D211 and 1D214, will become
8 Exhibit 1D219. Thank you.
9 [The witness withdrew]
10 JUDGE ROBINSON: We have to discuss some matters relating to the
11 programme for next week. Everything, Mr. Alarid, appears to hinge on
12 whether the accused will give testimony or not. So we have prepared two
13 programmes, two schedules. One on the basis that he will testify; the
14 other on the basis he will not testify. And I would like you to tell me
15 now what the position is.
16 MR. ALARID: Your Honour, we've scheduled a four-hour meeting
17 with the witness on Tuesday morning to facilitate a proofing and/or final
18 determination of that fact. So I can't give you a final answer. I think
19 it would be proper for me to even guess at this moment given the
20 testimony that's presented, but that was going to be the -- we were going
21 to use that break as the impetus to explore that at length. Tuesday 1 to
22 4, I apologise.
23 JUDGE ROBINSON: Why are you not meeting with him on Monday in
24 the afternoon?
25 MR. ALARID: Because we had court scheduled, Your Honour, and we
1 didn't want to presume.
2 JUDGE ROBINSON: You have witnesses for Monday then?
3 MR. ALARID: We -- we just received information that these two
4 subpoenaed witnesses that we did achieve service on have been contacted
5 and they -- Milian [phoen] just said that while we were -- you stayed in
6 here. Over the break we just received some word on that, Your Honour,
7 that the two subpoenaed witnesses that have been served have been
8 contacted and they are facilitating their appearance as we speak.
9 [Trial Chamber and legal officer confer]
10 JUDGE ROBINSON: I'm told not for Monday. Visas have been
11 requested, they travel on Wednesday and so they will be able to testify
12 on Thursday afternoon.
13 MR. ALARID: Then we would meet with the client on Monday,
14 absolutely then. We'll set up several hours for him, absolutely.
15 [Trial Chamber and legal officer confer]
16 JUDGE ROBINSON: So this is the position then, Mr. Alarid. So
17 you have all of Monday to interview the accused. You must let us know by
18 4.00 p.m., no later, on Monday, whether he will testify, because if he is
19 going to testify, then he will have to start on Wednesday. On Wednesday
21 MR. ALARID: I'm looking at the schedule.
22 JUDGE ROBINSON: We are still hoping to have Wednesday afternoon
23 as well. But we must know by 4.00 p.m. on Monday whether the accused is
24 going to testify.
25 MR. ALARID: Fair enough. Absolutely.
1 MR. GROOME: Your Honour, can I just ask that with your directive
2 also include notice to the Prosecution whether or not he will --
3 JUDGE ROBINSON: Yes, you will of course notify --
4 MR. ALARID: Notify everybody.
5 JUDGE ROBINSON: Yes.
6 [Trial Chamber and legal officer confer]
7 JUDGE ROBINSON: So that there's no court then on Monday, nor on
8 Tuesday because of the security measures for the conference next door.
9 And it means, then, that we will meet on Wednesday at 10 to 9.00.
10 MR. ALARID: Yes, sir.
11 JUDGE ROBINSON: So Monday by 4.00 p.m., the Chamber will be
12 informed as well as the Prosecutor by the Defence as to whether the
13 accused Milan Lukic will testify. We will adjourn until Wednesday at
14 10 minutes to 9.00.
15 MR. GROOME: Your Honour.
16 JUDGE ROBINSON: Yes.
17 MR. GROOME: If could I just raise just two matters briefly.
18 Your Honour, I see from the schedule that if he does not testify, the
19 Chamber is expecting rebuttal witnesses here next Friday. This would be
20 the third time now that the witnesses have changed -- victim witnesses
21 completely lost their patience with us, and I fear that some of these
22 witnesses that have rescheduled their work. I would ask the Chamber to
23 consider -- I see there are some flextime built into the schedule.
24 Yesterday the Chamber advised us that we would start our rebuttal case on
25 the 6th of April, we made arrangements with the witnesses for that, and
1 that's all been done. I'd ask the Chamber to consider allowing Friday,
2 if he does not testify, to be flextime, I think the parties have plenty
3 of work to occupy us and if we could just fix the Monday as a definitive
4 date for the Prosecution evidence, I believe it still fits well within
5 the Court's goals for concluding the case.
6 [Trial Chamber and legal officer confer]
7 JUDGE ROBINSON: Mr. Alarid, I'm reminded that we haven't yet
8 received from you any notification of about rejoinder witnesses.
9 MR. ALARID: That's true, Your Honour. The only I think at this
10 point in time we would reserve -- if we were able to effect subpoena
11 service on the remaining witnesses, we would consider them rejoinder.
12 They've already been allowed on the case in-chief and should we have the
13 time, that's when I would prefer to bring them, but we don't have anyone
14 else arranged.
15 [Trial Chamber and legal officer confer]
16 JUDGE ROBINSON: Today is the last day to notify the Chamber of
17 any rejoinder witnesses. The other thing too, is, Mr. Alarid, that the
18 Defence needs to be aware that its case will definitely be concluded next
20 MR. ALARID: We are happy.
21 JUDGE ROBINSON: By Friday if not before. Not go beyond Friday.
22 Mr. Groome, as to your proposal to make Friday flextime, I'm
23 reminded that the Trial Chamber may have two Chamber witnesses.
24 [Trial Chamber and legal officer confer]
25 JUDGE ROBINSON: Mr. Groome, I'm advised it would not be
1 advisable to change Friday as the flextime, and I'm sorry about the
2 witnesses being told so many times, but in view of the court schedule, it
3 does not appear to be wise.
4 MR. GROOME: Your Honour, as always we'll do our best to
5 accommodate the Chamber, just please recognise if we don't find out until
6 the end of Monday, Tuesday is a lost day, it will be Wednesday before
7 victim witness can then begin to book the tickets and change the -- and I
8 don't know how long it takes but I imagine they may find -- they may not
9 have complete success starting out Wednesday morning to try to arrange
10 all the travel. But we will of course do our best, Your Honour.
11 Your Honour, just one other matter I'd like to address to the
12 Chamber. Mr. Alarid filed an application for bar table motion on the
13 25th. The Chamber has asked us to file our response by Wednesday, the
14 1st of April. In looking at this motion, there's an -- it all seems to
15 be based upon an RFA and the RFA is discussed. It's an RFA dated the
16 5th of February, 2009, but it doesn't have the response attached to the
17 motion, it would be very helpful to have the response so that we know
18 exactly what it is we are dealing with.
19 Further, there are a number of documents that there is no
20 translation there. There are also two annexes in the application, both
21 listed annex C, with different documents and we are having a difficult
22 time sorting all of this out. There are two -- also two pages ending in
23 0586 and 0587 which are completely blackened, its impossible to read
24 anything on them. So we are asking the Chamber to direct the Milan Lukic
25 Defence to at least refile a courtesy copy of the document that does
1 have -- is a complete document that we can respond to. It's kind of
2 hindering our ability to draft our response the way it is now.
3 JUDGE ROBINSON: Mr. Ivetic.
4 MR. IVETIC: I can clarify. I can't clarify as to the blackened
5 documents, I don't know what order they were added to the annex, but I
6 can clarify as to the RFA. Essentially, Your Honours, we sent a request
7 for assistance to the Visegrad municipality asking for any and all
8 documents that have been sent to the Prosecution response to Prosecution
9 requests for assistance, and the documents that comprise the annex to our
10 motion are precisely those documents that we received back from the
11 Visegrad municipality. There was not a written response that at least
12 that I received. These documents arise from my visit to the Visegrad
13 municipality where -- and I was shocked to find out that the Office of
14 the Prosecution had in their possession documents confirming a part of
15 the Defence case that we had never been disclosed and that -- that was
16 when they advised me that I should send a formal request to obtain these
17 documents. These were responses to requests for assistance by the Office
18 of the Prosecutor which the Prosecution had received.
19 JUDGE ROBINSON: So the bottom line, as Mr. Alarid likes to say,
20 is what? Are you able to provide these missing articles from the
22 MR. IVETIC: I'll take a look at the filing and see what is
23 missing, what is black, I'll be more than happy to provide a full copy of
24 what I received, but there is no letter, per se, to me from Visegrad.
25 It's these documents that I received from the Visegrad municipality that
1 are the annexes, but I will make sure a complete set is provided to them
3 MR. GROOME: Your Honour, I accept Mr. Ivetic's explanation and
4 thank him for it. The two translations we are missing are 1D22-0552, and
5 1D22-0564; and the two illegible documents are 1D22-0586 and 1D22-0587.
6 Thank you.
7 JUDGE ROBINSON: Very well, that's on the transcript, Mr. Ivetic.
8 We are adjourned until Wednesday next week.
9 --- Whereupon the hearing adjourned at 2.41 p.m.,
10 to be reconvened on Wednesday, the 1st day of
11 April, 2009, at 8.50 a.m.