1 Wednesday, 22 July 1998

2 --- Upon commencing at 10.13 a.m.

3 JUDGE KARIBI-WHYTE: Good morning, ladies and

4 gentlemen. May we have the appearances, please?

5 MR. TURONE: Good morning, Your Honours, my

6 name is Turone, and I appear today with Mr. Cowles and

7 Mr. Huber for the Prosecution. Thank you.

8 JUDGE KARIBI-WHYTE: May I have appearances

9 for the defence, please?

10 MS. RESIDOVIC: Good morning, Your Honour, I

11 am Edina Residovic, I am defending Mr. Zejnil Delalic,

12 together with my colleague defending, Eugene

13 O'Sullivan, professor from Canada.

14 MR. OLUJIC: Good morning, Your Honour, I'm

15 Zeljko Olujic and defending Mr. Zdravko Mucic, and

16 together with me is my colleague, Niko Duric, present

17 here in the courtroom. We're both defenders from

18 Croatia.

19 MR. KARABDIC: Good morning, Your Honour, I

20 am Salih Karabdic attorney from Sarajevo. I'm

21 defending Mr. Hazim Delic, together with me at defence

22 counsel for Mr. Delic is Mr. Tom Moran, attorney from

23 Houston, Texas.

24 MS. McMURREY: Good morning, Your Honours,

25 I'm Cynthia McMurrey, I represent Esad Landzo along

1 with Mrs. Nancy Boler and Mr. Calvin Saunders.

2 MR. OLUJIC: I apologise, Your Honour, in the

3 record, the record states that I'm defending

4 "Mr. Mucinic". I'm defending Mr. Zdravko Mucic and I

5 want the record to reflect this. Thank you.

6 JUDGE KARIBI-WHYTE: Mrs. McMurrey, may we

7 hear you?

8 MS. McMURREY: Yes, Your Honour. I do not

9 have the three witnesses that I expected last night,

10 but I was on the phone until late in the evening with

11 Madam Vidovic from the Bosnian Embassy, and she is

12 determined to get to the bottom of this problem and she

13 has assured me that by noon today she would have that

14 problem solved. Victim and Witnesses Unit is still at

15 the Sarajevo airport prepared to put the witnesses on

16 the plane today, and I had guaranteed Madam Vidovic I

17 would wait until noon today before I would file a

18 subpoena and give her an opportunity to bring them the

19 way we had sought them in the first place.

20 I do believe that the witnesses will be here,

21 and if they come in tonight, which I will know by noon

22 today, from the Bosnian Embassy, if they're coming in

23 tonight or not, if they come in tonight we should be

24 prepared to start by 2.30 tomorrow afternoon, if the

25 Court would allow us the morning time to prepare the

1 witnesses and visit with them.

2 And we have those three witnesses that would

3 continue tomorrow afternoon and on into Friday morning.

4 JUDGE KARIBI-WHYTE: What information have

5 you got from the Victim and Witnesses Unit?

6 MS. McMURREY: Peter Mitas is still in

7 Sarajevo waiting for the witnesses. Evidently they

8 have received their authorisation. Everything is

9 copacetic with the Bosnian army, it's just that they

10 were not there yesterday, but they believe that --

11 Madam Vidovic believes she will have them there today.

12 And she is very much alarmed that they weren't there

13 yesterday.

14 I'm supposed to call her at noon and she will

15 let me know if they are at the airport or not. If they

16 are not at the airport I'm asking the Court to issue a

17 subpoena and Madam Vidovic will go ahead and make sure

18 that is issued so that we will have them tomorrow

19 night.

20 JUDGE KARIBI-WHYTE: I asked you what

21 information you might have had from the Victims and

22 Witnesses Unit. You're telling me about Madam

23 Vidovic. The Victims and Witnesses Unit is the unit

24 here which deals with witnesses over there.

25 MS. McMURREY: Yes, Your Honour.

1 JUDGE KARIBI-WHYTE: They should give us more

2 correct information. I know -- the ambassador knew

3 exactly how these subpoenas could be served, who would

4 be brought here. But the real contact for you is

5 Victims and Witnesses Unit.

6 MS. McMURREY: I met with Wendy Lobwein this

7 morning at 9.30 to reconfirm about the witnesses, and

8 all she could tell me is the Victims and Witnesses

9 person is still in Sarajevo, waiting for the witnesses,

10 they believe they will appear today. I think their

11 flight leaves at 1.50 this afternoon from Sarajevo.

12 JUDGE KARIBI-WHYTE: You have no information

13 as to why they did not appear yesterday, because you

14 were expecting them yesterday.

15 MS. McMURREY: Yes, I was.

16 JUDGE KARIBI-WHYTE: That is information I

17 expect you to have. What did the Victims and Witnesses

18 Unit tell you about that?

19 MS. McMURREY: I don't think anybody has an

20 answer at this point. The Victims and Witnesses Unit

21 also is depending on Madam Vidovic to supply us with

22 some kind of answer by noon today. I don't have the

23 answer. I believe maybe Wendy may be present in the

24 courtroom, I'm not sure, but we could certainly call

25 her and I would love for you to ask her if she has

1 any more information than I do about it. But I think

2 I've talked to everybody I can talk to and nobody has a

3 reason why they didn't show up yesterday, only that

4 they are predicted to show up today.

5 JUDGE KARIBI-WHYTE: I don't know what

6 usefulness a subpoena will serve at this point, because

7 your problem now is not one of subpoenas, is it a

8 problem that they do not want to come?

9 MS. McMURREY: Your Honour, we just spoke to

10 the witnesses less than a month ago in Konjic and they

11 were more than willing to come. They gave statements

12 and interviews and I even understand that Gogic was at

13 the investigator's office last week on Sunday ready to

14 come with his bags packed, but he did not have

15 authorisation then. That's my understanding from the

16 investigator in Konjic. I know they are willing to

17 come, it seems like there was some mess up between -- I

18 know the Ministry of Defence sent the authorisation to

19 the units, and somehow the units didn't get the

20 authorisation to the individual soldiers at the time.

21 But now they have them, and I can't see why they are

22 not coming and I really expect them to come today.

23 JUDGE KARIBI-WHYTE: That would suggest they

24 serve a subpoena, which negates what you just said.

25 MS. McMURREY: I was counting on Madam

1 Vidovic to have them on the plane today. If they are

2 not. I would like to issue a subpoena.

3 JUDGE JAN: A subpoena has already been

4 issued, hasn't it?

5 MS. McMURREY: No, Your Honour, not for these

6 witnesses.

7 JUDGE JAN: Why didn't you ask for a subpoena

8 earlier? You're wasting our time.

9 MS. McMURREY: My experience with DC.4 is

10 they are all so offended by the issuance of subpoena,

11 and I have three witnesses who are more than willing to

12 come. And I just didn't think I would like to offend

13 these witnesses when they have testimony I really need,

14 and I would like to have them not as adverse witnesses

15 but as friendly witnesses. And if I issue the subpoena

16 when they told me they are willing to come, that

17 negates their willingness to come offer testimony.

18 JUDGE JAN: They would be here on Monday,

19 today is Wednesday. You wasted two days, and Thursday

20 is also going to be wasted because you have not

21 subpoenaed them. You might have to close your

22 evidence.

23 MS. McMURREY: I'm asking the Court's

24 tolerance.

25 JUDGE JAN: You should have asked for the

1 subpoena much earlier.

2 MS. McMURREY: Until last night I didn't know

3 they wouldn't be coming on the plane.

4 JUDGE JAN: You shouldn't have taken a

5 chance.

6 MS. McMURREY: You're right, Your Honour, I

7 shouldn't have, and under the laws of my country --

8 JUDGE JAN: If you send a subpoena, it will

9 take another four or five days. You're just wasting

10 our time.

11 MS. McMURREY: I don't believe the subpoena

12 would take four or five days at this point, because

13 they have all been contacted and the Bosnian Embassy,

14 if they had the subpoena in hand, would be able to

15 bring them forward by Friday. That's what Madam

16 Vidovic said.

17 JUDGE KARIBI-WHYTE: The whole week is out.

18 MS. McMURREY: I believe they will be here

19 tonight, and I believe I can put them on tomorrow. If

20 not, I won't be able to call these witnesses, I think

21 that's obvious.

22 JUDGE KARIBI-WHYTE: You believe they might

23 come tonight. What gave you that assurance?

24 MS. McMURREY: The Bosnian Embassy gave me,

25 they asked that I wait until noon today and that they

1 thought they would have the witnesses at the airport

2 today.

3 JUDGE KARIBI-WHYTE: In that case a subpoena

4 is not necessary.

5 MS. McMURREY: That's what I'm hoping for,

6 Your Honour. I don't want to issue a subpoena for

7 witnesses who are willing to come and offer testimony.

8 In my country we subpoena everybody and nobody is

9 offended by it, but in Bosnia it's an attack on their

10 integrity and their honour for some reason.

11 JUDGE KARIBI-WHYTE: At close of the day when

12 you read the record you've seen how many inconsistent

13 things you said just within the last few minutes. So,

14 all perhaps we do, wait for them for today and then

15 possibly continue tomorrow. That is the view you now

16 take?

17 MS. McMURREY: Yes, Your Honour, that's what

18 I'm asking the Court, to allow these witnesses to come

19 today and be heard tomorrow.

20 JUDGE KARIBI-WHYTE: Which means we do not

21 issue a subpoena.

22 MS. McMURREY: I will not issue a subpoena.

23 I'm going to take my risk that the Bosnian Embassy will

24 have them here.

25 JUDGE KARIBI-WHYTE: I suppose we will have

1 to wait until 2.30 today. What do we have at that

2 time? Information that they are boarding the plane?

3 MS. McMURREY: I will know at noon today and

4 I can inform the Court without calling everybody back

5 to court. If you would like, I can call Mr. Hawking

6 the minute I talk to Madam Vidovic, that way my

7 colleagues won't have to come back into court and the

8 accused can go back to the detention centre.

9 JUDGE JAN: You said they are with Serbian

10 units. They are all over Bosnia.

11 JUDGE KARIBI-WHYTE: What information do you

12 have?

13 MS. McMURREY: Ms. Boler spoke to them in

14 Konjic, so it's my opinion they are in the Konjic area,

15 and only Ms. Boler can tell you -- I think they still

16 live in their homes most of the time and serve out of

17 the Konjic area. Is that right?

18 MS. BOLER: That's my understanding.

19 JUDGE JAN: They are serving their units and

20 staying at home. Very interesting.

21 MS. BOLER: I really don't have any more to

22 add other than what Ms. McMurrey said, but I will be

23 happy to answer specific questions, based on what

24 Ms. McMurrey told you. I don't have anything to add.

25 However, since I was the last one to go to Konjic, I

1 will answer any questions you might put to me, if I

2 can.

3 JUDGE KARIBI-WHYTE: You could have told us

4 all that you have done. My anxiety is that the

5 presentation of your case is affecting the whole trend,

6 the trend of the case, and after that, because there

7 are other applications which should follow the

8 conclusion of your case. And now we do not really know

9 when you are to close your case, because you have other

10 witnesses. These are not the only witnesses you have.

11 MS. McMURREY: Your Honour, we had -- the

12 Prosecution and Mr. Hawking and I have spoken earlier

13 today. We believe that the defence case of Esad Landzo

14 would be finished at the close of business on Tuesday,

15 and it could be predicted that the Prosecution would

16 put on Dr. Larry Sparr on Wednesday, which would work

17 perfectly because that would give their mental health

18 expert an opportunity to watch my mental health expert,

19 which I believe is to their advantage, and then my

20 mental health expert will watch Dr. Landy Sparr, too.

21 So if we have those next to each other, I believe it

22 will benefit both parties, and we're in agreement.

23 They won't have Mr. Landy Sparr here this week,

24 Dr. Landy Sparr, I'm sorry.

25 JUDGE KARIBI-WHYTE: Thank you for your

1 information so far. I think I will wait until you have

2 your information how to proceed with the witnesses you

3 are expecting.

4 MS. McMURREY: And I will call Mr. Hawking

5 the minute I've spoken to the Bosnian Embassy at noon.

6 JUDGE KARIBI-WHYTE: Now, we have this

7 application by Mrs. Residovic on the rescheduling of

8 the schedule of the 14th of August. You've asked for,

9 is that the professor's schedule?

10 MR. O'SULLIVAN: Yesterday, I believe you

11 were --

12 JUDGE KARIBI-WHYTE: Yes, I got that

13 yesterday evening, and I thought perhaps you asked for

14 amendments.

15 MR. O'SULLIVAN: Yes.

16 JUDGE KARIBI-WHYTE: To the scheduling order.

17 MR. O'SULLIVAN: Yes, in light of our trial

18 schedule, which we understand will close on the 7th of

19 August and resume on the 31st of August.

20 JUDGE JAN: Much earlier now. I think

21 probably next week. Does the Prosecution need this

22 evidence Wednesday, your expert?

23 MR. TURONE: We can say, Your Honours that

24 the Prosecution filed this morning the brief pursuant

25 to the scheduling order, and we are prepared to start

1 the rebuttal case next Wednesday, as --

2 JUDGE JAN: Will you take more than a day?

3 MR. TURONE: For what?

4 JUDGE JAN: Should your evidence take more

5 than a day?

6 MR. TURONE: More than one day, yes, for the

7 rebuttal case, but not the -- the brief has been filed

8 today and Your Honours will be able to see it and see

9 exactly what -- we mention only four witnesses, and

10 would take a few days.

11 JUDGE JAN: So it should be over by the end

12 of next week.

13 MR. TURONE: If we start on Wednesday, we

14 might be over at the end of next week, or maximum on

15 the next Monday. This is my anticipation. But I think

16 everything will be clear to Your Honours after reading

17 our brief filed this morning.

18 JUDGE JAN: There has to be a readjustment in

19 the scheduling.

20 JUDGE KARIBI-WHYTE: Yes. Now, my reason for

21 referring it to you is to give you an opportunity of

22 seeing that perhaps the 14 days which you ask for your

23 rebuttal rejoinder witnesses might be too long for the

24 purpose, because you should consider a shorter period

25 instead of 14 days, because I think there is -- I agree

1 that really one day is a little on the awkward side,

2 but 14 days might also go the same opposite way.

3 MR. O'SULLIVAN: Our understanding is that we

4 will not present rejoinder evidence, if any, until we

5 come back on the 31st.

6 JUDGE KARIBI-WHYTE: It might be. If it so

7 happens that you do, we will give you time to do so.

8 MR. O'SULLIVAN: In fact, there were four

9 aspects to this motion, as you know. The other one

10 that's important to us, and I believe the other

11 parties, is the date for filing written submissions

12 which we say should not happen until the final witness

13 is heard in this case and our proposal is --

14 JUDGE KARIBI-WHYTE: Certainly.

15 MR. O'SULLIVAN: We say if the final witness

16 is heard after the 31st of August, we can file these

17 briefs within 72 hours of that final witness. Much the

18 same way we did with Dr. Gow.

19 JUDGE KARIBI-WHYTE: Definitely you couldn't

20 have filed any brief before you complete the evidence

21 because you didn't know what to say, I understand that.

22 MR. MORAN: Your Honours, we, of course,

23 filed this morning a related motion based on the

24 plenary sessions change in the rules of procedure. As

25 the Court is well aware, the last plenary changed the

1 rules procedure as to punishment, if we get to that

2 part, and everybody on this side of the table and I

3 think everybody over there has been operating under the

4 theory we're going to be using the old bifurcated

5 system.

6 MR. KARABI-WHYTE: Something like that.

7 MR. MORAN: And so what I have filed this

8 morning, and I'm sure the Trial Chamber will get it in

9 a few minutes, a request to do, essentially asked for

10 two different forms of relief. And whichever makes the

11 Trial Chamber happy is fine with us. One is Rule 6C

12 says that if a change in the rules of procedure

13 adversely affects a defendant, it does not apply to

14 them. And the first thing we're asking is that you

15 apply rule 6C and proceed under the prior rules.

16 In the alternative what we have asked for is

17 some time after the last witness on rejoinder to pull

18 our punishment case together. As I said, the Trial

19 Chamber will see the motion. I lay out the reasoning

20 on which I think is the best way to proceed, but I just

21 wanted you to know that it's out there, it's on its way

22 to you.

23 JUDGE KARIBI-WHYTE: When we see a motion,

24 then we will know what to say about it. But

25 ordinarily, questions of sentences come after

1 conviction.

2 MR. MORAN: That's my been my experience,

3 Your Honour.

4 JUDGE KARIBI-WHYTE: Ordinarily never

5 seriously discussed before conviction.

6 MR. MORAN: If it had not been for the last

7 plenary changing the rules, of course, this would not

8 have come up. I'm not criticising the Tribunal, and I

9 don't want anybody to think that I am, but it's just

10 that at this late date in the trial, when everybody has

11 been using a certain procedural set of rules, to

12 suddenly wake up and find they are changed, we're just

13 asking for some help from the Trail Chamber.

14 JUDGE KARIBI-WHYTE: There are ways of

15 ameliorating such things even if we find that it is a

16 hardship on the accused persons. At least even for one

17 day, you be given an opportunity to present any

18 evidence.

19 MR. MORAN: Yes, Your Honour. And when you

20 see my motion, you'll see I have laid out two options

21 for the Trial Chamber. Well, one of which I think is

22 the better option for all concerned and the other which

23 is, essentially, a second tier option. But they're

24 both workable, I believe.

25 JUDGE KARIBI-WHYTE: Thank you. Now, Ms.

1 McMurrey, how do we stand with you? Because, first, we

2 wouldn't have your witnesses today. When tomorrow are

3 we likely to have them?

4 MS. McMURREY: Well, Your Honour, if they get

5 on that plane this afternoon, they should be at the

6 hotel like the other witnesses about ten o'clock

7 tonight and I could probably speak to one witness late

8 tonight, but I would like to start sometime to give me

9 a few hours in the morning to talk to the other

10 witnesses, if we could start by 2.30 tomorrow

11 afternoon, that would be perfect and I would be

12 prepared with the witnesses. The last time we stayed

13 up late last -- preparing witnesses until 1.30, our

14 interpreter got sick and she's still unable to come

15 work with us again because we spent such long hours. I

16 am just asking that I could possibly prepare one

17 witness tonight if they get in and prepare the other

18 two witnesses in the morning and be prepared to start

19 tomorrow afternoon.

20 JUDGE KARIBI-WHYTE: Well, keep your fingers

21 crossed that we have them today so that we will carry

22 on tomorrow afternoon.

23 MS. McMURREY: I am counting on it, Your

24 Honour.

25 JUDGE KARIBI-WHYTE: I suppose we're going to

1 have another American holiday because we have not been

2 able to get your witnesses in time. So the Trial

3 Chamber will now rise and reassemble tomorrow

4 afternoon.

5 --- Whereupon proceedings adjourned at

6 10:35 a.m., to the reconvened on

7 Thursday, the 23rd day of July,

8 1998, at 2.30 p.m.

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