1 Wednesday, 29 July 2015
2 [Open session]
3 [The accused not present]
4 --- Upon commencing at 9.02 a.m.
5 JUDGE DELVOIE: Good morning to everyone in and around the
7 Mr. Registrar, could you call the case, please.
8 THE REGISTRAR: Thank you. And good morning, Your Honours. This
9 is the case IT-04-75-T, the Prosecutor versus Goran Hadzic.
10 JUDGE DELVOIE: Thank you. May we have the appearances, please,
11 starting with the Prosecution.
12 MS. JARVIS: Good morning, Your Honours. Michelle Jarvis
13 appearing for the Prosecution this morning. Mr. Stringer has conveyed
14 his apologies to the Court. He is unable to be present. I'm appearing
15 today with Elizabeth Spelman and our case manager, Indah Susanti.
16 JUDGE DELVOIE: Thank you very much.
17 For the Defence, Mr. Zivanovic.
18 MR. ZIVANOVIC: Good morning, Your Honours. For the Defence of
19 Goran Hadzic, Zoran Zivanovic and Christopher Gosnell, with Cory Stevens,
20 legal assistant, and Amilee Myson, legal intern. Thank you.
21 JUDGE DELVOIE: Thank you. May the record reflect that the
22 Chamber is sitting pursuant to Rule 15 bis, Judge Hall being absent.
23 The hearing today arises from a proprio motu order of the
24 Trial Chamber issued on the 1st of April, 2015, ordering the appointment
25 of independent experts to assist the Trial Chamber in determining whether
1 Mr. Hadzic is fit to stand trial. The aim of this hearing is to have the
2 appointed independent expert, Mr. Martell, answer questions from the
3 Prosecution, the Defence, and possibly the Chamber, to provide further
4 explanations and clarifications regarding his expert report filed on
5 23 July 2015.
6 Today's hearing will begin with 45 minutes of questioning from
7 the Prosecution, followed by 45 minutes of questioning from the Defence,
8 and conclude with Chamber's questions, if any.
9 I would like now to ask the parties' submissions with regard to
10 the character of this hearing. I do remember that the previous expert
11 hearing was, at the end, decided to be public. Today's hearing is
12 perhaps a little bit more delicate so ...
13 [Defence counsel confer]
14 JUDGE DELVOIE: What would the Defence -- what would the position
15 be for the Defence?
16 MR. GOSNELL: Good morning, Mr. President, Your Honours.
17 The position from the Defence is that there is no objection to
18 public session for the content of the testimony. With the exception of
19 any discussion of the final prognosis. As Your Honours know, the
20 specificity in terms of the amount of time that is mentioned in the final
21 prognosis, we have redacted that in all of our submissions. So we would
22 just request that in respect of that item, that that be kept in private
24 JUDGE DELVOIE: Any position from the OTP?
25 MS. JARVIS: Your Honour, we have no position on that.
1 JUDGE DELVOIE: Thank you.
2 [Trial Chamber confers]
3 JUDGE DELVOIE: So we will stay in public session and try to
4 avoid and eventually intervene on -- to avoid in public session the issue
5 raised by the Defence and eventually intervene.
6 The witness may be brought in.
7 [The witness entered court]
8 JUDGE DELVOIE: Good morning, Dr. Martell.
9 THE WITNESS: Good morning.
10 JUDGE DELVOIE: I think it's appropriate to thank you as we start
11 this hearing for your willingness to assist the Tribunal on a very short
12 notice in Serbia and now in The Hague. For the record, would you please
13 state your name, your date of birth, and your profession.
14 THE WITNESS: Yes, my name is Daniel Martell. I was born
15 October 22nd, 1957, and I am a forensic neuropsychologist.
16 JUDGE DELVOIE: Thank you, Dr. Martell. Although I know you are
17 perfectly familiar with what I am go to say, I have to point out that by
18 making the solemn declaration I will ask you to read, you expose yourself
19 to the penalties of perjury should you give false or untruthful
20 information to the Tribunal.
21 Please read out the solemn declaration.
22 THE WITNESS: I solemnly declare that I will speak the truth, the
23 whole truth, and nothing but the truth.
24 WITNESS: DANIEL MARTELL
25 JUDGE DELVOIE: Thank you very much. You may be seated.
1 THE WITNESS: Thank you.
2 JUDGE DELVOIE: Ms. Jarvis, you may --
3 [Trial Chamber and Registrar confer]
4 JUDGE DELVOIE: Dr. Martell - and this is also for OTP and the
5 Defence - may I ask you to speak slowly and pause between questions and
6 answers because everything that is said has to be translated. Thank you.
7 THE WITNESS: I understand.
8 JUDGE DELVOIE: Please, Ms. Jarvis.
9 MS. SPELMAN: Thank you very much. My name is Elizabeth Spelman
10 on behalf --
11 JUDGE DELVOIE: Sorry about that.
12 MS. SPELMAN: -- of the Prosecution. Thank you.
13 JUDGE DELVOIE: Yes, Ms. Spelman.
14 MS. SPELMAN: If I may ask, at the end of my questions if I have
15 any time left over, I respectively request that I can use that time,
16 please, for any follow-up questions.
17 Examination by Ms. Spelman:
18 Q. So good morning, Dr. Martell.
19 A. Good morning.
20 Q. As I said, my name is Elizabeth Spelman and I'm a lawyer for the
21 Prosecution here at the Tribunal, and I have some questions about the
22 report that you've prepared on the basis of the Chamber's request. Can I
23 just check, do you have a copy of that report with you?
24 A. I do.
25 Q. In the course of my questions if there's anything at all that you
1 would like me to clarify, please do not hesitate to let me know.
2 So can I ask what were the exact terms of your instructions from
3 the Tribunal in carrying out your examination of Mr. Hadzic.
4 A. I was asked to carry out an in-depth testing that would assist
5 the Trial Chamber in determining whether Mr. Hadzic is fit to stand
7 Q. And did the Registry provide you with an explanation of the ICTY
8 standard of fitness for trial?
9 A. No.
10 Q. I understand that you examined Mr. Hadzic over the course of two
11 days, on the 13th and 14th of July, 2015, in Serbia; is that correct?
12 A. Yes.
13 Q. How long did the entire examination last?
14 A. The first day, I was with him from approximately 9.00 in the
15 morning until noon. At that time he became too tired to continue. I
16 gave him a test called the MMPI, which is short for Minnesota Multiphasic
17 Personality Inventory. It's a paper and pencil test that would take him
18 several hours to complete. I asked him to have his lunch and take his
19 nap and then complete the test in the afternoon. I came back the next
20 morning at 9.00 and saw him again until about noon that day.
21 Q. Okay. And so how many hours in total would you say the
22 examination lasted?
23 A. I spent approximately six hours face to face with him and he
24 spent approximately another three hours out of my presence completing the
1 Q. Thank you. And did Mr. Hadzic understand the reason for your
2 examination of him?
3 A. He did.
4 Q. And you were confident that he had no difficulty in understanding
5 that he had to provide his consent and that the examination or the
6 results of the examination would not remain private between you?
7 A. That's correct.
8 Q. Are you satisfied that Mr. Hadzic gave his informed consent to
9 the examination that you conducted?
10 A. I am satisfied.
11 Q. As can you see, Mr. Hadzic is not here today and he has provided
12 his written consent for today's hearing to proceed in his absence. Do
13 you think that Mr. Hadzic understood what he was doing when he signed the
14 relevant waiver?
15 A. He did not sign a waiver. He provided a verbal indication that
16 he understood the reason for the examination and that he consented to
18 Q. Thanks, Dr. Martell. I should perhaps just explain myself a
19 little bit better.
20 Mr. Hadzic is not here today at this hearing and as a result of
21 not being here he signed a waiver saying that he wouldn't be here. And
22 do you think that he understood what he was doing when he signed that
24 MR. GOSNELL: Objection, Mr. President. Dr. Martell doesn't know
25 what Mr. Hadzic's condition was at the time that he signed this document.
1 Dr. Martell has no knowledge of when the document was signed.
2 Dr. Martell doesn't know the content of the document. In these
3 circumstances it's a question that calls for speculation.
4 MS. SPELMAN: Apologies, Your Honours, if I may rephrase the
5 question then.
6 JUDGE DELVOIE: Go ahead.
7 MS. SPELMAN:
8 Q. Dr. Martell, based on the time that you spent with Mr. Hadzic and
9 your examinations of him, do you think that he had the capability to
10 understand the implications of signing the waiver today?
11 MR. GOSNELL: Objection. Again, Mr. President, Dr. Martell
12 doesn't know the content of the waiver, doesn't know the circumstances of
13 it being signed. He cannot answer the question as posed without
15 JUDGE DELVOIE: I'll allow the question.
16 Please answer the question, if you can, Mr. Martell.
17 THE WITNESS: I would suppose, and there are some suppositions,
18 that he understood that signing the waiver meant that he would not have
19 to leave Novi Sad and come attend this proceeding, and I think he is
20 capable of understanding that.
21 MS. SPELMAN:
22 Q. Thank you, Dr. Martell. During the examination you asked
23 Mr. Hadzic both oral and written questions.
24 A. I did.
25 Q. How many oral questions approximately did you ask him?
1 A. Hundreds.
2 Q. Okay. And how many written questions did you ask him?
3 A. 567.
4 Q. Okay. That's pretty exact. Thank you. And was the questioning
5 or were the tests, were they conducted under conditions that were
6 designed to be stressful?
7 A. No, but they can be for some people.
8 Q. Okay. And do you find that subjects perhaps who are being
9 assessed, do they perform better when the conditions are not stressful?
10 A. My objective is to extract the best possible performance from the
11 person I'm examining. I do whatever it takes to make them comfortable
12 and to make the testing as straightforward for them as possible. Given
13 whatever deficits or limitations a patient may have, they may find the
14 testing stressful as they realise things that they can't do and that may
15 be difficult for them. But, in general, I try to make it as unstressful
16 as possible.
17 Q. And were Mr. Hadzic's answers responsive to the questions that
18 you posed?
19 A. Yes, they were.
20 Q. In your report you mention that you worked with an interpreter
21 and you asked her to alert to you any abnormal word pronunciations and
22 wrong or atypical word choices. Did she have to do this on many
24 A. No, only on a couple of occasions.
25 Q. And when you say "a couple," is it approximately two or more?
1 A. I would say approximately two, maybe three.
2 Q. Okay. You mentioned that Mr. Hadzic had difficulty maintaining
3 attention after approximately two and a half hours. For how long
4 approximately could he maintain attention without becoming tired or
5 requiring a break?
6 A. Well, these are two different questions. He has some fairly
7 severe problems with attention, with paying attention to what's happening
8 around him, and he also becomes fatigued after approximately two and a
9 half hours of sustained focused activity. Now, for example, sitting
10 through my testing, at the end of about two and a half hours his
11 performance would drop off. He was less able to interact with me. He
12 became more uncomfortable. He needed to sleep. During that time, he
13 displayed problems with attention but he also has the lack of stamina to
14 continue beyond that point.
15 Q. Okay. And you mentioned that he took some breaks. How long
16 approximately were those breaks?
17 A. We took short breaks for the restroom, and then at the end of
18 about two and a half hours, he could not tolerate any additional testing
19 and needed to stop to sleep. He told me that he would generally sleep
20 for anywhere from half an hour to an hour and a half and that that would
21 "recharge his battery."
22 Q. Okay. And after the break did you find that Mr. Hadzic could
23 focus again on your questions?
24 A. I saw him the next day. I did not remain in his apartment while
25 he napped. I gave him the paper and pencil test to take. I saw him the
1 next morning and he was a little different than the first day. He found
2 it very difficult to complete the 567 questions on the test and felt that
3 that took a lot of his energy the previous afternoon and evening. And
4 that morning, the next morning, he was less able to focus and engage in
5 the testing.
6 Q. Did you discuss Mr. Hadzic's medical history with him; for
7 example, did you discuss his treatment and the medication that he is
9 A. I did.
10 Q. Did you discuss it any particular detail or did you rely mostly
11 on the information that you were provided with?
12 A. I found the medical record to be more informative than Mr. Hadzic
14 Q. Did you speak at length about his medical history?
15 A. I did.
16 Q. And did you discuss any other topics; such as, did you discuss
17 his family?
18 A. I did.
19 Q. And any past events? For example, how he came to the Tribunal?
20 A. Well, he did mention that there was a period of time when he was
21 in hiding from the Tribunal, but I did not spend time talking about his
22 case in chief because I felt that was outside of my referral question.
23 Q. Okay. In terms of this -- of these discussions, however, can you
24 just provide me some more details about your discussion with him. What
25 did he tell you?
1 A. I took a history from him. He told me a bit -- he -- in terms of
2 his medical history he was concerned that I understand about his falls at
3 the United Nations Detention Centre. He particularly wanted me to
4 understand he felt that on his first fall he had dislocated his shoulder
5 and that the doctors at the facility, in attempting to reset the
6 shoulder, had in fact broken his arm. And I did not see that in the
7 medical record but that was his understanding of what happened and he
8 wanted me to know that that was what happened.
9 He was able to tell me his parents' names, the work that they
10 did, he was able to tell me where he was born. He was able to tell me
11 how far he went in school. He was able to tell me about his everyday
12 functioning, his sleeping, his eating, problems he had noticed in his
13 thinking and his memory. And he was able to give me at least a brief
14 overview of his psychiatric and medical history.
15 Q. And you mention that he discussed with you his time on the run.
16 A. Yes.
17 Q. Did you provide any more detail than that?
18 A. No, he just alluded to the fact that he had spent time on the
19 run. He also spent some time talking about religious ideas that he has
20 and spiritual feelings that he has. And I offered that -- and that he
21 had read hundreds of books about religion. And I offered to him that
22 perhaps he had read those while he was hiding in the monastery, which I
23 had read from the internet, and he actually denied that and -- not that
24 he had been there but that he read the books from the monastery, and he
25 argued that his faith was larger than that of the priests.
1 Q. Okay. And in terms of those books, did he say -- did he -- just
2 from what you said there, was that he read them recently or was it --
3 A. I think that he had read them over his lifetime and particularly
4 the last seven or eight years.
5 Q. Thank you. And did you discuss him time in the UN Detention Unit
6 with you?
7 A. Only in small bits. The incidents where he fell and the incident
8 with his broken arm. He also described a hallucinatory experience that
9 he had during his chemotherapy treatment where he thought he saw a shadow
10 walk through his door that he believed to be his father. That this
11 happened five or six times. He attributed this to his chemotherapy. He
12 said he was having other symptoms. He described it like a laser show
13 going off in his room, that he was nauseous, that he was dizzy, that he
14 felt it was side effects. It had never happened before and it did not
15 happen again after.
16 Q. Thank you. You mention that he wanted to be quite sure in
17 explaining to you the details of his shoulder injury. Did he engage or
18 try to initiate any other kind of discussion with you which you hadn't
20 A. He did talk some. I'd asked him about family history and he
21 talked about being alienated from his first wife and the discomfort that
22 that causes him in trying to think about planning for his last days and
23 his estate and not wanting people fighting between his new family and his
24 old family. It wasn't necessarily something he volunteered, but it was
25 outside the scope of any direct question that I asked him.
1 Q. Did you arrive at any conclusions about Mr. Hadzic's medium and
2 long-term memory?
3 A. I did.
4 Q. What were those conclusions?
5 A. His long-term memory is better than his short-term and
6 intermediate memory. He is extremely impaired with regard to his
7 short-term memory, but he was better able to discuss things that had
8 happened in his past.
9 Q. And how did you examine his medium and long-term memory?
10 A. Medium memory largely from the testing that I did. I
11 administered a specialised computer-administered test in Serbian to him
12 called the CNSVS, or Central Nervous System Vital Signs. That tests both
13 his visual and his verbal memory, both immediate and short term, medium
14 term. And so that's my primary instrument for shorter term memory. And
15 long-term, like years and years memory, I did that based on interview and
16 his ability to recount for me facts from his past.
17 Q. Did you discuss the nature of the charges against Mr. Hadzic?
18 A. I did not.
19 Q. Did you discuss the reason for his arrest and for his detention?
20 A. I did not.
21 Q. Based on your having spent two days with Mr. Hadzic, do you think
22 that he has the ability or the capability to understand the charges
23 against him?
24 A. Yes, I do.
25 Q. Did you discuss the stage that the trial proceedings in this case
1 are at with him?
2 A. I did not.
3 Q. Did Mr. Hadzic mention that he is currently on provisional
4 release from the UN Detention Unit?
5 A. I was aware of that from the records, but did he not mention that
7 Q. Did Mr. Hadzic mention that he already testified in these
9 A. No.
10 Q. Did you ask Mr. Hadzic whether he understands that the Judges
11 will determine whether he is responsible for the crimes for which is he
13 A. I did not.
14 Q. But, again, based on your having spent two days with Mr. Hadzic,
15 do you think that he understands that he is involved in a trial and that
16 he has proceedings against him?
17 A. I do.
18 Q. Are you aware that the Prosecution has proposed modifications to
19 the trial proceedings that would mean that Mr. Hadzic would not have to
20 physically attend court proceedings?
21 A. No, I am not.
22 Q. Would it have made a difference to your assessment of
23 Mr. Hadzic's ability to participate in court proceedings if you knew that
24 Mr. Hadzic did not have to attend the court proceedings or that the court
25 proceedings could be modified to accommodate his needs for breaks and for
2 A. I was not aware of that.
3 Q. But would it have made a difference to your assessment, do you
4 think, about his ability to participate in court proceedings?
5 A. Yes.
6 Q. In what way would it have made a difference to your assessment?
7 A. Well, I think such accommodations would be critical for him to be
8 involved at all with regard to his need for rest and his lack of physical
9 endurance. I'm a bit confused, you know, about whether he would have the
10 opportunity to observe the proceedings, and if that's relevant to the
11 Court that he be able to do so. I think it's in that realm that I have
12 greater concern about his fitness. But I do agree that shorter court
13 days and accommodations for his physical disabilities would advance his
15 Q. Okay. And do you think -- yes, sorry. I'll just withdraw the
16 question. That's fine. Thank you.
17 So if I can just clarify some parts of your report, if that's
18 okay, please, Dr. Martell.
19 A. Certainly.
20 Q. On page 8 of your report, you say regarding Mr. Hadzic that his
21 insight was good. Can you explain to me what you meant by this, please.
22 A. "Insight" is a term that we use in behavioural science to reflect
23 the degree to which a person understands what's wrong with them and how
24 it affects them. He has good insight into his illness and into the
25 problems that it causes in his life.
1 Q. Okay. You say that specifically in relation to his illness. Do
2 you think that is applicable to other issues?
3 A. I'm not sure what you mean.
4 Q. Do you think he has a good insight or understanding of other
5 matters in his life, not just his medical condition?
6 A. I do. He certainly has insight into the fact that his life is
7 very limited at this point. He has insight into the ramifications of
8 that for his family members that will survive him. He has insight into
9 the fact that these trial proceedings are still ongoing.
10 Q. Okay. And, again, on page 8 of your report, Dr. Martell, you
11 indicate that Mr. Hadzic expressed his thoughts "in a logical, coherent,
12 and goal-directed fashion with no evidence of formal thought
13 disorder ..."
14 Can you again just explain a little bit more in detail about what
15 you mean here, please.
16 A. Yes. Overall, Mr. Hadzic's verbal abilities, his speaking
17 abilities, are well-preserved despite the brain tumor. He is able to
18 communicate effectively. He is able to understand what is asked of him
19 and respond in an appropriate fashion.
20 Q. On page 11 of your report, you indicate that Mr. Hadzic has good
21 reading comprehension. Again, can you explain a little bit more in
22 detail what you mean and perhaps provide an example, please.
23 A. Yes. He was given - I've mentioned it before - the MMPI-2 which
24 is a test for mental illness. It consists of 567 questions, all of which
25 were written in Croatian. He was able to read and understand the
1 questions. And the test has built into it ways to determine if the
2 person taking the test understands the material. This is done by looking
3 for consistency in the way he answers questions. For example, if there's
4 "I loved my father" and he says "true," later in the test if it says "I
5 loved my father," he should answer "true" again. Or if it says "I hate
6 my father," he should answer "false." This would show that is he
7 understanding the content of the questions. His score on that scale was
8 within normal limits, indicating to me that he was able to read and
9 understand the questions.
10 Q. Okay. Again on page 11 of your report you state that Mr. Hadzic
11 gave coherent responses to a complex verbal expression test. And can you
12 just again explain a little bit in more detail what you mean, please.
13 A. I think you're talking about the "Cookie Theft" picture?
14 Q. Okay.
15 A. Okay. This is a test that we use to look at how someone
16 expresses themselves verbally. They are shown what's essentially a
17 cartoon of a woman in her house washing the dishes as the sink overflows
18 and her little boy on a stepstool reaching for a cookie jar, and the
19 stepstool is teetering over and he's about to fall onto his little sister
20 who is underneath waiting to get a cookie. And so what we're looking for
21 is can the person describe accurately what they see in the picture. And
22 Mr. Hadzic identifies the woman, identifies the boy, but misses the fact
23 that the water is flowing out of the sink and that the stool is teetering
24 over and -- until later when his attention was drawn that, he was unable
25 to identify those facts. But given that lack of attention to the
1 critical details, he was still able to verbally describe what he saw in
2 the picture. He was what we call concrete. He would say: The woman has
3 a dish in his hand. There are two glasses on the sink. There is a
4 cookie jar. So this is very concrete as opposed to the more abstract
5 ideas of there's things going wrong in the story, the water flowing out
6 of the sink and the children falling off the stool.
7 Q. Just turning to page 14 of your report, Dr. Martell, can you
8 please explain what you mean when you say that one of Mr. Hadzic's
9 strengths is his intact and appropriate social skills?
10 A. Certainly. The tumor at this point has not greatly affected the
11 frontal lobes of his brain. The frontal lobes are the largest part of
12 our brain that are responsible for a lot of our abstract reasoning,
13 critical thinking, decision making, problem solving, and some language
14 functioning. It also monitors our social skills. He is intact with
15 regard to being kind, gracious, understanding what's happening in a
16 situation, behaving appropriately for what's happening in a situation.
17 His social skills therefore are intact.
18 Q. And again on page 14, you refer to Mr. Hadzic's preserved
19 abstract reasoning and abstract problem solving. Can you just discuss
20 this a little bit more, please, and also maybe provide me with a
21 practical example of this?
22 A. I administered a couple of tests. One is like a card game where
23 he needs to sort cards to different targets, it might be the number of
24 objects on the card or the colour of the objects on the card or the shape
25 of the objects on the card. So as he sorts, I will tell him if he's
1 right or if he's wrong, say I'm looking for colour. Once he figures out
2 colour, I will say: That's correct, that's correct, that's correct.
3 When he is correct ten times, I don't tell him but I change and now I
4 want to know the number of items on the card. He has to stop sorting to
5 colour and learn what I'm looking for and then start sorting to numbers.
6 And when he gets that right, then I'll change again and go to shapes. So
7 he needs to be able to solve a changing problem situation over time using
8 abstract reasoning skills. He was able to do that without a problem.
9 Q. Dr. Martell, if you just bear with me for one moment, please.
10 A. Sure.
11 MS. SPELMAN: Mr. President, Your Honour, may I please confer
12 with my co-counsel for a moment.
13 JUDGE DELVOIE: [Microphone not activated]
14 [Prosecution counsel confer]
15 MS. SPELMAN:
16 Q. Dr. Martell, that is all for now from the Prosecution. Thank you
17 very much.
18 A. You're welcome. Thank you.
19 Q. Thank you.
20 MS. SPELMAN: Thank you, Your Honours.
21 JUDGE DELVOIE: Mr. Gosnell.
22 MR. GOSNELL: Thank you, Mr. President.
23 Examination by Mr. Gosnell:
24 Q. Good morning, Dr. Martell.
25 A. Good morning.
1 Q. My name is Christopher Gosnell. I represent Mr. Hadzic. I have
2 just a few questions for you today.
3 A. Okay.
4 Q. If I could direct you to page 15 of your report, please, and you
5 were asked some questions about the concept of fitness for trial as you
6 understand it. Can you inform us how you do understand that concept of
7 fitness for trial.
8 A. Well, I understand it in the sense of American jurisprudence
9 probably better than I do in terms of the Tribunal's jurisprudence.
10 Certainly in America there's two prongs we look at. One is understanding
11 the charges against him and what happens in the court proceedings is the
12 first prong. The second prong is his capacity to co-operate with counsel
13 and assist in his own defence. I understand that similar standards are
14 applied here. I provided language the best that I had in my report
15 although it was not specified in my referral. It was based from a
16 previous case I did for the Tribunal some years ago. And it's really
17 that second prong of co-operation with counsel and assisting in one's
18 defence that I think is at issue here.
19 Q. And did you use this concept in order to identify what cognitive
20 elements or what cognitive performances you were measuring and looking at
21 in Mr. Hadzic?
22 A. In large part, yes. The Court had requested a comprehensive
23 evaluation, so I looked at everything from how fast he can tap his
24 fingers to how smart he is and everything in between but with special
25 attention to those cognitive and mental skills that would be needed in
1 order to participate in a trial.
2 Q. So those criteria that you understand as being part of fitness
3 for trial were part of your assessment of what skills or cognitive
4 abilities to measure but not an exhaustive description of what you were
5 measuring; is that fair to say?
6 A. Yes.
7 Q. Now, you were asked some questions about potential forms of
8 accommodation of Mr. Hadzic in order to ameliorate his ability to
9 understand. And one of the measures that is possibly available would be
10 for Mr. Hadzic, instead of sitting in the back of the courtroom here and
11 observing the proceedings live, sitting somewhere else and having a
12 screen in front of him with a video of the proceedings going on, perhaps
13 accompanied by a screen, such as the one that you have in front of
14 yourself, showing the words that are spoken in the courtroom.
15 Now, would that kind of arrangement substantially alter, would it
16 make it better, would it make it worse, in terms of the cognitive
17 deficiencies that you've noted on page 15?
18 A. It, if anything, would probably make it worse.
19 Q. How so?
20 A. Because instead of -- when one sits in this room, you have this
21 entire universe of the proceedings to focus your attention upon. When
22 you're sitting on a couch in your house looking at a computer screen and
23 a monitor, you've got your wife, you've got noises in the street, you've
24 got your house, more things to distract you from focusing on what's going
25 on. Plus given his cognitive problems, I doubt that he could attend to,
1 for example, reading words that keep scrolling up on the screen and
2 correlating that with what he is seeing on the video feed. That kind of
3 rapid information processing is a significant deficit area for him.
4 The primary advantage of that arrangement would be that he could
5 stop and rest. The problem would be he would need to notify the Court
6 that he needs to stop and rest, rather than just disengaging or falling
7 asleep while the proceedings are ongoing.
8 Q. In that respect, some terms that we've heard in the past that I
9 noticed did not figure, I believe, in your report are: Executive
10 function --
11 A. Yes.
12 Q. -- and suggestibility. And I wonder if you could tell us about
13 Mr. Hadzic's ability to take initiative which I understand is part of
14 executive function.
15 A. It is part of executive function. And by and large his executive
16 functioning is intact. Where he has problems goes to stamina and the
17 ability to maintain attention over time. For example, I gave him a test
18 where he needed to tell me as many words that would start with the
19 letter, like the letter A, and he would start off quite rapidly
20 generating several words in the first 15 seconds of the minute and then
21 slowly stop and go silent for the remaining time. He couldn't maintain
22 the initiative in the process.
23 It's that kind of concern, that inability to maintain focus that
24 is an executive deficit that concerns me here.
25 Q. And when you say over time in response to the answer that -- in
1 your response that you just gave, that's not a time-period of an hour,
2 30 minutes, 15 minutes. It can be as short as a minute. Is that right?
3 A. That's correct.
4 [Defence counsel confer]
5 MR. GOSNELL: Mr. President, thank you very much. That completes
6 our questions.
7 Q. Dr. Martell, thank you.
8 A. Thank you.
9 JUDGE DELVOIE: Thank you.
10 [Trial Chamber confers]
11 Questioned by the Court:
12 JUDGE MINDUA: [No interpretation].
13 [Interpretation] Dr. Martell, thank you very much for coming here
14 and making this deposition. I have two small questions for you in order
15 to understand you clearly.
16 Did you have a chance to find out whether during the tests the
17 accused - or the patient, should I call him - was under the effect of
18 medication? Was he taking any medication that may have affected or
19 impaired his capability to answer your questions?
20 A. He was taking medication, primarily medications for his cancer
21 treatment which are outside of my understanding as a mental health
22 professional. I don't prescribe such medications so it's difficult for
23 me to opine about the effect of those medications on his cognitive
24 ability. I can't rule it out. I know that he described one medicine
25 that he takes at bedtime that helps him to sleep. Whether he takes that
1 during the day, I do not know.
2 JUDGE MINDUA: [Interpretation] All right. Thank you. I
3 understand, then, that based on the question of whether he takes
4 medication or doesn't take some medication, his capability to answer your
5 questions may vary and it may also impact his capability to participate
6 in his trial. Would that be your conclusion?
7 A. In general, yes. Psychiatric medications tend to improve a
8 person's performance on neuropsychological tests. You do better with the
9 medication than without it. However, as I said, I'm not as familiar with
10 the chemotherapy medications, and I certainly wouldn't advise him to stop
11 his medications in order to participate in the proceedings.
12 JUDGE MINDUA: [Interpretation] All right. Well, thank you very
13 much, indeed. I may put the rest of my questions to the other
14 specialists on this very point.
15 But my second question to you is the following. You explained to
16 the accused - or to your patient, should I put it - the purpose of your
17 tests, the reason why you were running these tests. You wanted to check
18 whether he was fit for trial, to participate actively in his trial.
19 Now, what I would like to know applies not only to this
20 particular patient but I would like to have a more general answer from
21 you. Is it possible for someone who undergoes these very same tests to
22 provide with you false responses to change the results of the tests?
23 A. Yes, it is possible, and this is a big concern in forensic
24 practice, which is my speciality area. Because of the concern about --
25 we use the term "malingering" or "faking." Because of that concern, I
1 administered tests mixed in with the regular tests to catch him if he is
2 trying to exaggerate his problems or fake brain damage or fatigue that he
3 does not actually have. Mr. Hadzic in every case passed those tests,
4 indicating he was giving good effort and not exaggerating his problems
5 and, therefore, I believe my findings are reliable and valid indications
6 of his current level of functioning and not the product of manipulation.
7 JUDGE MINDUA: [Interpretation] Thank you again for your answers.
8 Thank you.
9 JUDGE DELVOIE: Dr. Martell, I have a few questions for you as
11 First one is about the qualification of Mr. Hadzic's disease. It
12 is, I read in your report, multi-focal glioblastoma multiforme.
13 Could you please give us a short explanation about the two words
14 "multi-focal" and "multiforme" and the difference between the two.
15 A. Multi-focal means that it exists in more than one place at the
16 same time. Glioblastoma multiforme is the classic term for the tumour.
17 The multi-focal is an indication that it has, in fact, metastasized to
18 multiple locations within his brain. I took the phrase directly from the
19 medical reports.
20 JUDGE DELVOIE: Thank you. My next question is about premorbid
21 intelligence. Could you give us a short explanation of what premorbid
22 intelligence is and how it's measured.
23 A. I would be glad to.
24 We use the term "premorbid" to indicate what his IQ was before
25 the brain tumour infected him. Given that no one tested his IQ earlier
1 in life, the only way to estimate what it would be is to use a formula,
2 an actuarial formula somewhat like what life insurance companies use to
3 determine how long you will live. It takes into account one's sex, one's
4 age, one's occupation, whether one lives in an urban or a rural setting,
5 and uses these as predictors to provide both a verbal IQ, a performance
6 IQ, and a full-scale IQ estimate. It is only an estimate, but it struck
7 me after the testing I did, given his history, that an IQ of 95 was
8 probably an underestimate of what his true IQ would have been. Hence, I
9 did the -- it's called the Barona Index which was a method to try and
10 estimate what his true IQ would have been before the brain tumour. And
11 it comes out much higher, closer to 120.
12 JUDGE DELVOIE: I see that, indeed, Dr. Martell. And your result
13 is approximately 119. It's quite a precise outcome for an estimation
14 based on a demographic formula. I would rather expect a range than a
15 figure. Would you -- wouldn't you agree?
16 A. Yes, I could provided a range. I did not do that in this case
17 because I felt sometimes too much information is not helpful to the
18 Court. But it is possible to calculate those ranges, and if the Court
19 would like, I have what I need to do it here with me, not on the stand
20 but in the waiting him, and I could provide those --
21 JUDGE DELVOIE: I've seen for the Barona Test a range from 20 to
22 25 IQ points. Would that be reasonable?
23 A. I think that plus or minus ten is reasonable, yes.
24 JUDGE DELVOIE: So that's my final question about this topic.
25 Your 119 could also be read as plus or minus 10?
1 A. Correct.
2 JUDGE DELVOIE: So it's in the middle of that range?
3 A. That's correct.
4 JUDGE DELVOIE: Thank you.
5 Hadzic scored at the bottom of 1 percentile in multiple tests,
6 including verbal memory, visual memory, and composite memory. That's
7 page 10 of your report.
8 A. That's correct.
9 JUDGE DELVOIE: At what percentile would these impairments
10 manifest themselves to a layman?
11 A. I think if one lived with Mr. Hadzic, you'd be quite aware of the
12 impairments that he has, where he will not remember something he told you
13 that morning, where he will not remember something you just watched on
14 television. It may well be something that is apparent to his counsel.
15 So one need not be as impaired as he is for people to notice that level
16 of impairment but certainly anyone -- when you're one out of 100 that's
17 impaired as he is, others will certainly notice it.
18 JUDGE DELVOIE: Thank you. Mr. Hadzic's brain tumour is
19 described as rapidly progressive. What does "rapidly progressive" mean
20 exactly? Does it mean that Hadzic's capacity to -- capacities are
21 expected to diminish further; and if they are expected to diminish
22 further, in what way are they expected to do so?
23 A. It's a difficult question to answer. Rapidly progressively
24 means, as it sounds, it gets worse quickly. It grows, it is the most
25 aggressive brain tumour, brain cancer, that one can have. It grew in
1 size just during the time from when he began his chemotherapy until, I
2 think, last November. I have to recall the dates, I'm a little
3 jet-lagged. But it is rapidly growing, and because of that, it can be
4 expected to continue to grow and his capacity to participate will
5 continue to deteriorate. He will get worse. The nature in which he gets
6 worse depends on where the tumour goes. At this point his frontal lobes
7 are fairly well preserved, his language centres are fairly well
8 preserved, but if the tumour begins to invade the language centres or the
9 executive control centres, then there will be further deterioration in
10 those behaviours on top of the ones that are already impaired involving
11 attention, concentration, and memory.
12 JUDGE DELVOIE: Thank you. If there are no follow-up questions?
13 MS. SPELMAN: Yes, Mr. President, I just have a couple of
14 follow-up questions if that's okay with Your Honours. Thank you.
15 Further Examination by Ms. Spelman:
16 Q. Dr. Martell, I have just two more questions if that's okay.
17 A. Of course.
18 Q. You mention -- just in relation to the questions, both oral and
19 written, that you asked Mr. Hadzic, you mention that in one afternoon he
20 completed over 500 written questions. Is it correct that you completed
21 those 500-plus, I think you mentioned 547, he completed those questions
22 in one afternoon?
23 A. I believe he did that in one afternoon and evening. They are
24 single questions with a yes or no answer.
25 Q. Okay. Thank you. And again, just when you were discussing the
1 oral questions you put to Mr. Hadzic you mentioned that you had asked him
2 hundreds of question and when I asked you did he understand your
3 questions you said, yes, he did and that he was responsive. Can I
4 just -- but in terms of a percentage, would that mean that he understood
5 about 100 per cent of the questions that you asked him?
6 A. I would say yes.
7 Q. Okay. Thank you, Dr. Martell.
8 A. Certainly.
9 MS. SPELMAN: Thank you, Your Honours, Mr. President.
10 JUDGE DELVOIE: If nothing else, Dr. Martell, this hearing comes
11 to an end. We thank you again for assisting the Tribunal. You are now
12 released as a witness. The court usher will escort you out of the
13 courtroom. We wish you a safe journey home.
14 THE WITNESS: Thank you, Mr. President.
15 [The witness withdrew]
16 [Trial Chamber and Legal Officer confer]
17 JUDGE DELVOIE: If there's nothing else.
18 MS. JARVIS: Your Honours, I have just one, perhaps, procedural
19 matter. We note that in the original order from Your Honours in respect
20 of written submissions following the hearings, you'd indicated that you
21 would want written submissions within four days of the examination of the
22 witnesses. In view of the fact that the second witness will now be
23 delayed, perhaps we could clarify whether Your Honours intend the written
24 submissions to follow four days after the testimony of the second
25 witness. Thank you.
1 JUDGE DELVOIE: Well, Ms. Jarvis, as we understand that part of
2 the OTP team, or if not the entire OTP team, is not -- I mean, OTP team
3 in Hadzic case, the normal members of it, are not available right now, it
4 is perhaps better to wait for the submissions until we have had the
5 second expert as well. Would that be convenient?
6 MS. JARVIS: Your Honour, yes, thank you. That would certainly
7 seem to make sense in terms of being able to then address the full range
8 of issues in one set of submissions.
9 Your Honours, perhaps I could also just ask whether there is any
10 indication of when the examination of Dr. Specenier will be scheduled, if
11 you know that, at this stage?
12 JUDGE DELVOIE: Well, without being completely sure but there is
13 an indication it would be, if I'm not wrong, on the 21st of August.
14 MS. JARVIS: Thank you, Your Honour.
15 JUDGE DELVOIE: Court adjourned.
16 --- Whereupon the hearing adjourned at 10.03 a.m.,
17 sine die.