1 Thursday, 18 September 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 8.54 a.m.
5 JUDGE ROBINSON: Private session, please.
6 [Private session]
18 [Open session]
19 JUDGE ROBINSON: Mr. Groome.
20 THE REGISTRAR: Your Honours, we're in open session.
21 MR. GROOME: Yes, Your Honours. I wanted to address the Court on
22 the issue of another witness VG-42 and it is a matter that directly
23 affects our ability to meet our burden of proof on count 6 and 7 of the
24 indictment, the murder of seven Bosnian Muslim men at the Varda factory.
25 There has already been a great deal of time devoted both in
1 pleadings and in decisions regarding VG-42, most of it arising out of a
2 pre-trial matter. Although the Prosecution identified the witness at the
3 time designated by Rule 65 ter, we had not made the decision to call
4 witness by the time Judge Thelin had ruled all Rule 66 disclosure be
5 completed at times several months earlier. It was his view that despite
6 the absence of any violation of Rule 65 ter by the Prosecution, its
7 failure to identify and disclose the witness according to the work plan
8 he established was a sanctionable act and left it to this Trial Chamber
9 to decide whether or not to permit the calling of this witness.
10 The Trial Chamber on the 8th of July, 2008, denied the
11 Prosecution motion to include VG-42 on the witness list, citing the
12 failure to disclose this witness's statement at the time designated by
13 Judge Thelin. In denying this witness the Chamber acknowledged that the
14 evidence of this witness was prima facie relevant but held the view that
15 the evidence was cumulative of witnesses already included on the witness
17 My submission today is an effort to make clear to the Trial
18 Chamber that the evidence of VG-42 is not cumulative and in fact our
19 inability to call VG-42 as a witness compromises our ability to meet our
20 burden of proof on counts 6 and 7 of the indictment. We have made this
21 request in writing in our motion for leave to amend the witness list of
22 the 8th of September in which the Prosecution proposed to drop another
23 witness to this event, a witness we believe may be unable to sustain our
24 burden on these counts.
25 Your Honours, while I still disagree that the work plan deadlines
1 somehow negated the right of the Prosecution to select its witnesses up
2 until the time clearly designated in the Rules, I accept the sanction of
3 the Court. I believe the Chamber in sanctioning the Prosecution intended
4 to deny it the ability to call a witness not to make it impossible to
5 meet its burden on a particular count. That, Your Honours, is the
6 probable effect of the sanction. It is my position that such a severe
7 sanction for what was never an intentional disregard of Judge Thelin's
8 work plan but an exercise of the Prosecutor's rights under Rule 65 to
9 select its witnesses would be an inappropriate and a miscarriage of
11 In April of this year, Your Honour, the Prosecution on its own
12 initiative reduced the size of this case by one-third. Yesterday I moved
13 to withdraw a witness and today I will move an additional witness that I
14 believe is no longer necessary to establish our burden of proof. The
15 Prosecution has endeavoured to prosecute this case in the most efficient
16 way possible, but reducing the Prosecution case to its essential evidence
17 means that the Chamber's decision denying the calling of a particular
18 witness jeopardises its ability to prove its case.
19 VG-42 is the only eyewitness to the Varda executions who knew
20 Milan Lukic from before the event and saw him pull the trigger and kill
21 the men on that day. She went to the killing site afterward and helped
22 bury some of the victims.
23 The Defence have been in possession of VG-42's relatively brief
24 statement for approximately six months now, so I am requesting that the
25 Chamber give serious consideration to our application to substitute this
1 witness, VG-42, for Witness VG-85. In doing so, the Chamber still
2 sanctions the Prosecution for the perceived non-compliance with Judge
3 Thelin's work plan in an appropriate way and does not compromise the
4 Prosecution's ability to prove its case. If the Chamber grants this
5 relief, I would also be seeking to withdraw an additional witness who I
6 believe would not any longer be necessary to the establishment of charges
7 with respect to counts 6 and 7. Thank you.
8 JUDGE ROBINSON: Yes. We'll consider you application and give a
9 ruling as quickly as possible.
10 MR. GROOME: Thank you, Your Honour. And Ms. Marcus would like
11 to address the Chamber on a disclosure matter with respect to this
13 JUDGE ROBINSON: Yes. Just a minute.
14 MR. CEPIC: I think Mr. Alarid.
15 JUDGE ROBINSON: All right. Mr. Alarid.
16 MR. ALARID: Your Honour, just for the record, the time for our
17 response to that motion to substitute witnesses hasn't expired yet and so
18 that was one of the things we wanted to point out in terms of you making
19 your ruling and of course that does, I know, complicate the scheduling of
20 the witnesses but this was just filed September 8th to substitute the
21 witness in again.
22 JUDGE ROBINSON: If we were to allow the application, to grant
23 it, when do you -- would you propose to call this witness?
24 MR. GROOME: Your Honour, one of the problems that we're facing
25 now is that many of the remaining witnesses are subject to pending
1 applications. We would like to call this witness next week. There are
2 other pending applications before the Chamber. One of the suggestions I
3 was going to put forward to the Chamber, I anticipate we may finish early
4 tomorrow with the evidence. I was going suggest to the Chamber to
5 consider devoting the remainder of the time to perhaps dealing with some
6 of these pending applications orally. Again as I say, many of the
7 witness that is we're trying to schedule in the remaining two weeks of
8 the Prosecution case are subject to pending applications and after we
9 receive a decision by the Chamber they are of course many arrangements
10 that need to be made before the witness actually appears.
11 JUDGE ROBINSON: The response would be due on the 22nd if --
12 MR. ALARID: Monday. Monday, Your Honour.
13 JUDGE ROBINSON: Monday.
14 MR. ALARID: Yes.
15 [Trial Chamber confers]
16 JUDGE ROBINSON: Mr. Alarid and Mr. Cepic, would you be able to
17 provide a response to this motion by tomorrow?
18 MR. ALARID: We would make effort if ordered by the Court. We'd
19 prefer not to, of course, but, you know, it would be at the Court's
20 discretion on that.
21 JUDGE ROBINSON: Mr. Cepic.
22 MR. CEPIC: We'll try to do our best and complete this motion --
23 MR. ALARID: And if we --
24 MR. CEPIC: -- tomorrow morning.
25 MR. ALARID: If we could just limit our response just to 42 and
1 give us leave to supplement the response for the remaining witnesses
2 requested by the Prosecution by Monday, that might be a fair way to split
3 the issue.
4 JUDGE ROBINSON: Yes, we can do that. We could do that. So I
5 would expect you to respond tomorrow. This is an informal way of dealing
6 with applications that run into the kind of problem that the Prosecution
7 has, and the same facility will be extended to the Defence when it
8 presents its case. Not that I'm inviting it.
9 MR. ALARID: I hope so, Judge. I'll be probably asking at this
11 JUDGE ROBINSON: Ms. Marcus.
12 MS. MARCUS: Yes, Your Honour, could I request closed session --
13 private session for this submission.
14 JUDGE ROBINSON: Yes. Private session.
15 [Private session]
11 Pages 1832-1833 redacted. Private session.
7 [Closed session]
11 Pages 1835-1911 redacted. Closed session.
16 --- Whereupon the hearing adjourned at 2.01 p.m.
17 to be reconvened on Friday, the 19th day
18 of September, 2008, at 8.50 a.m.