1 --- Tuesday, 23rd June, 1998
2 --- Upon commencing at 10.06 a.m.
3 (Private Session)
13 Pages 13286 to 13315 redacted - in private session
1 (In open session)
2 JUDGE KARIBI-WHYTE: Yesterday I was
3 mentioning to the Prosecution whether they would be
4 prepared to take the motion of the Defence. Are you
5 ready for it this morning?
6 MR. NIEMANN: Yes, Your Honour, we can argue
7 the matter today.
8 JUDGE KARIBI-WHYTE: Yes. Can we hear -- I
9 think it's Ms. McMurrey's motion, this question of the
10 safe conduct for Defence witnesses. Is that the one we
11 were referring to? Yes. Is that the one were all
12 Mr. Moran's motion --
13 MR. NIEMANN: It was Mr. Moran's motion. I
14 think we are in a position to --
15 MR. MORAN: Whatever the Court's pleasure,
16 as far as we are concerned. We can put in another one
17 today, just for logistical reasons, but whatever order
18 the Court wants to do it in, that's fine.
19 JUDGE KARIBI-WHYTE: Either of them, because
20 I didn't think there was any difficulty in dealing with
21 any of them. Which of them are you willing to take
23 MR. NIEMANN: We are willing to take
24 whichever ones Your Honours want to do. When Your
25 Honours first raised it, I thought you were talking
1 about the motion by Mr. Moran in relation to
2 Dr. Bellas.
3 JUDGE KARIBI-WHYTE: Yes.
4 MR. NIEMANN: That was the one I was --
5 JUDGE KARIBI-WHYTE: Yes, I think we can do
6 that. Although yesterday, from what you were saying,
7 we did not think there was so much in it, except Mr.
8 Moran suggested that there was far more to it than
9 merely hitting a person with a baseball bat. If there
10 is much more than that, then perhaps you might add the
11 addition of reasons why you think he needed a medical
12 doctor for it.
13 MR. MORAN: Your Honour, there is
14 considerable evidence of not only beatings throughout
15 the -- from numerous Prosecution witnesses, but also
16 testimony about burnings and other things, plus
17 testimony about conditions in the camp.
18 Now, I agree with Judge Jan that the Court
19 doesn't need an expert to tell it that if someone gets
20 hit 250 times with a baseball bat, he is going to be
21 severely injured. But there are other instances where
22 Prosecution witnesses claimed injuries, and there are
23 other incidents where they claim things occurred
24 involving conditions in the camp.
25 As a forensic pathologist, board certified
1 both in pathology and forensic pathology, Dr. Bellas
2 has the training and experience to interpret some of
3 the testimony that was given, and I believe aid the
4 Court in the credibility of that just by talking about
5 the reasonable medical probability of these things.
6 Just so the Court will know, I've gone
7 through most of the transcript, and I am still going
8 through more, pulling out testimony from the
9 Prosecution witnesses and then delivering it to
10 Dr. Bellas. And I am also going to provide a disk of
11 all that I pull out to the Prosecutor, so nobody is
12 going to be surprised by anything.
13 I think that this could be helpful to the
14 Trial Chamber in judging credibility of some of these
15 witnesses, I say solely based on reasonable medical
17 The registry has informed me unofficially --
18 verbally that they have no problem with Dr. Bellas
19 appearing. I have not received any written
20 confirmation on that, but I'm sure that that will be
21 coming. I suspect that his testimony will not be so
22 long that it would delay the trial unnecessarily. In
23 fact, given the amount of time that your scheduling
24 order has given me, I suspect I am going to give the
25 Court some time back.
1 JUDGE JAN: Forensic medicine is a very large
2 subject. If you tell us the fields in which he is
3 going to cover, maybe that will be helpful.
4 MR. MORAN: Well, first, based on his
5 background, of course. Dr. Bellas was the former --
6 JUDGE JAN: That's all right, but the fields
7 that you want to cover.
8 MR. MORAN: Yes, Your Honour. Well, we want
9 to cover things like blunt trauma injury and with
10 specific in testimony. In all reasonable probability,
11 if you were hit across the bottom of the back twice
12 with a board, which is one piece of the testimony, in
13 all reasonable medical probability, given no medical
14 treatment, what would the result of that be.
15 In all reasonable medical probability, if you
16 were in a hot tin building with very -- with limited
17 water, what would the result of that be over a period
18 of months. That type of thing, Your Honour.
19 MS. McMURREY: Your Honours, I would like to
20 join in with Mr. Moran, because I believe this forensic
21 specialist would be helpful also in the Defence of Esad
22 Landzo with regard to the allegations of burns that the
23 Prosecution witnesses have told about. And also we
24 have photographs, we have medical examinations of the
25 witnesses here, and he would be able to relate those as
1 to what it would have been like, or what the
2 probability of those existing in 1992 or prior to
3 1992. So I believe he would be very helpful to the
4 Defence of Esad Landzo also.
5 So we join in Mr. Moran's request for this
6 forensic psychologist -- psychologist -- this forensic
7 specialist to help us also. Thank you.
8 JUDGE KARIBI-WHYTE: Any comments on this?
9 MR. NIEMANN: Thank you, Your Honours. Your
10 Honours, now we know a little more about what this
11 testimony is about. But we object to the calling of
12 Dr. Bellas, and we are submitting to Your Honours that
13 the motion should be denied.
14 We do that for this reason, that we say that
15 the evidence would be, one, cumulative and, B, not the
16 best evidence. And the reason we say that is because
17 all the way through the Prosecution case the
18 opportunity was available to the Defence, and was
19 availed of, to have Prosecution witnesses medically
20 examined. Medical examinations were carried out and
21 reports were filed and submitted to the Court, and they
22 are before the Court.
23 And what the Defence is seeking to do by this
24 motion is to call a witness to comment upon the
25 evidence. And that's all they are doing. Whereas the
1 medical examinations that were carried out is direct
2 evidence and the best evidence, because an examination
3 of the witnesses was done.
4 JUDGE JAN: We had these photographs on the
5 record. Don't you need an expert to explain those
6 photographs to us?
7 MR. NIEMANN: Well, I wouldn't have thought
8 so, Your Honours. I would have thought that two things
9 may have been helpful with more information as
10 required. One is for an expert -- the doctors that
11 actually carried out the examinations to come along and
12 to explain, A, why there is an absence of, say,
13 bruising at this stage or whatever, or why there isn't
14 extensive scarring and all of those things.
15 And this would have been very helpful if this
16 -- presumably, if this is the line the Defence wanted
17 to pursue, because these doctors carried out the
18 examination and the witnesses were here. And also they
19 would have been in a position to ask any relevant
20 questions of the witnesses, which may have been
21 assisted in this --
22 JUDGE JAN: (Microphone not on) -- did not
23 examine those doctors who took the photograph,
24 therefore, they want to produce a doctor to tell us
25 what those photographs mean.
1 MR. NIEMANN: But the fact that these
2 witnesses weren't examined is not something that should
3 be -- the medical examination wasn't --
4 JUDGE JAN: Let them examine the expert.
5 MR. NIEMANN: Well, if Your Honours feel -- I
6 am making my submission. I submit that it is
7 inappropriate and it will give rise to the Prosecution
8 having to pursue this matter in rebuttal.
9 JUDGE KARIBI-WHYTE: I didn't think it will
10 be of any value at all. I don't see the value in
11 merely commenting on what another doctor has examined.
12 I don't see -- if you want it as evidence, let him come
13 and say something, but definitely I think it's of very
14 little value, because much of what he will be doing is
15 post facto. The thing has happened, the circumstances
16 have changed, he is merely imagining what the position
17 would have been at that time, and it would not be of
18 any use.
19 If he is one of the doctors who examined the
20 accused persons for burns and the like, that will be
21 direct evidence. Now he would not be doing that.
22 MR. MORAN: Your Honour, just so it's real
23 clear, we are --
24 JUDGE KARIBI-WHYTE: If you insist on the --
25 and the registry is prepared to consider that to you,
1 they might do that. But I am only telling you what I
2 feel about the worth of that evidence.
3 MR. MORAN: Just so that it's real clear, we
4 are not going to ask Dr. Bellas to comment upon the
5 examinations of the Dutch physicians. What we are
6 going to ask Dr. Bellas to comment on is the likelihood
7 of -- well, given the testimony of the witnesses and
8 the result that the witnesses say occurred because of
9 this blunt trauma, or this other kind of trauma, or the
10 conditions in the camp, what the medical probability
11 would be of a given result.
12 Your Honour, if the Trial Chamber is going to
13 allow them to appear, I would ask one thing, to try to
14 save everybody a little bit of time and money, that we
15 pick a date certain per chance -- I would suggest the
16 Wednesday, the 8th of July, to have him appear here no
17 matter what else is happening. That's in the middle of
18 the time the Court has set aside. If we finish the
19 rest of our case, bring him in on that day, or if there
20 is another witness. Just because it's probably more
22 JUDGE KARIBI-WHYTE: I will consider that.
23 You say it's evidence, you tender your evidence, but it
24 doesn't mean much to what, perhaps, we have seen and
25 heard and observed the witnesses themselves. I don't
1 now whatever opinion he would be giving us without
2 even seeing any of them.
3 MR. MORAN: Yes, Your Honour.
4 JUDGE KARIBI-WHYTE: I think we will grant
5 it. We'll grant it, I think.
6 MR. MORAN: Thank you, Your Honour. I will
7 have him here on that Wednesday, then. And, in fact, I
8 will have him here a few days early, if the Prosecutor
9 wants to talk to him.
10 JUDGE KARIBI-WHYTE: Yes, we might be able --
11 if he can have them to change their views.
12 Are you -- I think we'll take this other
13 question of the safe conduct application thing. I
14 think that is Ms. McMurrey's application, the safe
15 conduct of some of the witnesses. I think one of them,
16 is it? One witness?
17 MS. McMURREY: No, Your Honour. The safe
18 conduct has a confidential annex, and that's why I
19 believe that maybe we should go into private session at
20 this point to discuss this.
21 (Private Session)
13 Pages 13325 to 13356 redacted - in private session
22 --- Whereupon proceedings adjourned at
23 12:10 p.m., to be reconvened on
24 Monday, the 29th day of June, 1998,