Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6325

 1                           Thursday, 26 March 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.19 p.m.

 5             JUDGE ROBINSON:  It's Ms. Sartorio.  I know the advocacy will

 6     match the elevated status we will have been accorded today.

 7             MS. SARTORIO:  I will try not to disappoint you, Your Honour,

 8     Mr. President.

 9                           WITNESS:  GEORGE HOUGH [Resumed]

10                           Cross-examination by Ms. Sartorio:

11        Q.   Good afternoon, Dr. Hough.

12        A.   It's Hough.  Good afternoon.

13        Q.   Sorry.  I made that mistake and it stuck in my head ever since

14     the beginning when I made that mistake.  My name is Laurie Sartorio, and

15     I'm a prosecutor here, and I'll be asking you some questions on

16     cross-examination.  And since you've testified before, I'm sure you're

17     familiar with being cross-examined.  Some of the questions that I'm going

18     to ask you should have either yes or no answers.  And I would like you if

19     you would to answer them as concisely as possible because as you heard

20     yesterday, we're limited in our time.  So could you try to do that,

21     Doctor?

22        A.   I'll make my best effort.

23        Q.   Thank you.

24             Now, you told us yesterday that you have been to Bosnia.  When

25     were you there?

Page 6326

 1        A.   I was there in May of 2000 and -- I believe it was 5 or 6.  I'm

 2     not quite sure which.

 3        Q.   And what were you doing there?

 4        A.   I was traveling around the country on a fact-finding trip with a

 5     friend, talking with citizens within Bosnia, particularly in Tuzla and

 6     Sarajevo.  We went to Madressa.  We went to an outpatient treatment

 7     clinic.  We went to a drug and alcohol treatment programme.  We went to

 8     an NGO.  We talked to a lot of people just trying to get a sense of what

 9     was the -- in a post-conflict environment, what is the trauma recovery,

10     what resources are available, and generally how are people coping.

11        Q.   Was this a project that you just took an interest in personally,

12     or were you retained by an organisation to do this?

13        A.   No, it was a personal interest.

14        Q.   And how long were you there?

15        A.   I would say about nine to ten days.

16        Q.   Okay.  Now, I'm going to reverse the order of my cross, and I'm

17     going to start with talking about your report and your evaluation of

18     Mr. Lukic.  Now, the first thing that I want to talk to you about is

19     related to the issue of translations and the Defence counsel acting as

20     translator.  Other than Mr. Ivetic, who acted as your translator, can you

21     tell us who else was present during your interviews?

22        A.   That was it.

23        Q.   And at the beginning of your report and, also, you did say

24     yesterday, you shared your concerns that with Mr. Ivetic acting as a

25     translator between you and Mr. Lukic.  And am I correct that everything

Page 6327

 1     that Milan Lukic said was translated to you and vice versa?  In other

 2     words, Mr. Lukic does not speak any English; is that correct?

 3        A.   Not to my knowledge, no.  A few words but not fluent.

 4        Q.   And I believe your words that you used yesterday were that it was

 5     not the ideal circumstances.  Is that right?

 6        A.   That's correct.

 7        Q.   And in fact, you didn't talk to the Defence counsel about this

 8     arrangement, did you not?

 9        A.   We did talk about that arrangement.

10        Q.   And you probably weren't happy that there wasn't an independent

11     translator?

12        A.   They assured me this is what we had.  All other resources had

13     been exhausted.

14        Q.   And that's true.  They did assure you that that's all you had,

15     but again, my question was were you not pleased with this arrangement?

16        A.   I wasn't totally dissatisfied.  I thought he did a very good job.

17        Q.   Okay.  But doing a good job, sir, is probably not the same as --

18     you know, you're subjective.  He probably did do a good job, but that's

19     not the point, is it?  The point is the objectivity that must be

20     maintained in this type of situation.  Do you agree with that?

21        A.   I agree with that.

22        Q.   Okay.  And in fact, one of the -- ethical conflicts in

23     psychology, fourth edition, are you familiar with that document?

24        A.   Of fourth -- yes, I have that book.

25        Q.   Okay.  And are you familiar with a section on --

Page 6328

 1             JUDGE ROBINSON:  Who's that by, Ms. Sartorio?

 2             MS. SARTORIO:  We could bring it up, Your Honour.

 3             JUDGE ROBINSON:  No, why don't you just -- what's the source?

 4             MS. SARTORIO:  It is the Donald Bursoff.  "Ethical Conflicts in

 5     Psychology."  It's a book on ethical conflicts in psychology, and I was

 6     asking if he was familiar with it.

 7             JUDGE ROBINSON:  Yes.  Please go ahead.

 8             MS. SARTORIO:

 9        Q.   And in this book, in this ethical conflicts book, it said

10     problems may arise when the linguistic skills of the psychologist do not

11     match the language of the client.  In such a case, the psychologist

12     referred the client to a mental health professional who is competent to

13     interact in the language of the client.  If this is not possible,

14     psychologists offer the client a translator with cultural knowledge and

15     appropriate professional background.  If translation is necessary,

16     psychologists do not retain the services -- do not retain the services of

17     translator para-professionals who may have a dual role with the client.

18             THE INTERPRETER:  Kindly slow down when reading.  Thank you.

19             MS. SARTORIO:  To avoid jeopardising the validity of the

20     evaluation or the effectiveness of the intervention.

21             THE WITNESS:  Yes, I reviewed those guidelines that you're

22     referring to, and again, there were really no other choices available.  I

23     went through that list from most optimal to least optimal availability,

24     and this is what was available.

25             MS. SARTORIO:

Page 6329

 1        Q.   Okay.  But I'm not going to ask you -- I'm not asking you to make

 2     a moral judgement about Mr. Ivetic or anything, but my question to you is

 3     this:  You cannot rule out the fact that items could have been omitted in

 4     the discussion between you and Mr. Lukic.  You can't rule that out.

 5        A.   No, of course.

 6        Q.   And you really have no way of confirming one way or the other

 7     whether Mr. Ivetic translated everything you said and -- to Mr. Lukic and

 8     then back to you other than the tapes; is that fair to say?

 9        A.   That's fair to say.

10        Q.   Now, did you ask for copies of the tapes after your interview?

11        A.   No, I did not.  I can't speak the language.

12        Q.   Okay, but did you think it was important to maybe have copies of

13     the tapes for your records in case anything were to come up at a later

14     stage?

15        A.   No, I didn't think it was important.

16        Q.   Okay.

17        A.   They wouldn't serve any purpose for me.  I cannot speak the

18     Bosnian language.

19        Q.   True, but you could give them -- you could retain an interpreter

20     back in Kansas, and they could have it translated and transcribed, could

21     they not, if you needed it?

22        A.   I suppose so.

23        Q.   But you didn't think it was that important just to have a copy in

24     your office of the interviews?

25        A.   No, because I knew they had a copy.

Page 6330

 1        Q.   Okay.  And since your interviews, have you listened to the tapes

 2     and any parts of the tapes at all?

 3        A.   No, I have not.

 4        Q.   Did you ask that the tapes be transcribed and translated?

 5        A.   No.

 6        Q.   And did you learn about the issue with the translator after you

 7     arrived in The Hague for the interview or beforehand?

 8        A.   I am not exactly sure.  It would have either been right before I

 9     arrived or immediately thereafter.  I'm not quite sure on that.

10        Q.   So it was after you had flown all the way from Kansas to

11     The Hague is when you found out this situation?

12        A.   Well, it may have been right before, but again, it would have

13     been in very close proximity to the flight.

14        Q.   Now, the second area that I want to get into, and it is in regard

15     to the interviews apart from the translation issues, is the

16     cross-cultural issues.  And there's some issues that I'd like to talk to

17     you about with regard to the psychological test that you administered.

18     And I understand yesterday you personally recognised these kinds of --

19     the issues that may arise when you're giving standardised psychological

20     testing across cultures.  You recognised that yesterday; correct?

21        A.   Can you be more specific with your question what I recognised.

22        Q.   Okay.  The question was from Mr. Alarid:  "Now, what relevance is

23     cultural sensitivity to exploring a forensic path with, let's say, a

24     foreign national of Bosnia?"

25             And you said:  "Well, it's very relevant."  And then you went on

Page 6331

 1     to describe "the differences between groups can often be quite divergent,

 2     so it's important to as best one can to try to understand as much as

 3     possible about the culture in which you will be immersed," And you went

 4     on to describe that.  So you were cognizant of problems using psychology

 5     tests that I presume these tests were -- they're administered in America;

 6     correct?

 7        A.   Correct.

 8        Q.   And the scores that are given, that are added up to these tests

 9     are measured against Americans; right?

10        A.   Not all of them.  The Rorschach, for example, is used

11     cross-culturally, internationally.

12        Q.   It is?

13        A.   And has precedent and having been administered to Nazi war

14     criminals who were standing trial at Nuremberg.

15        Q.   Okay.  So can you tell us what other languages, if you know, that

16     the Rorschach -- is it translated into other languages?

17        A.   It's administered -- the protocol -- or I should say the

18     instrument itself is -- has very low language base to it, so it can be

19     administered in any culture.  It's a series of unstructured pictures to

20     which the patient describes what they see.  So this has been done,

21     Israel, for example, Mexico, used throughout Europe.  There is an

22     international Rorschach society that ...

23        Q.   But the interpretation of what the patient says as to what he or

24     she sees in the picture, they're measured against American answers;

25     correct?

Page 6332

 1        A.   No, not necessarily.  I mean, there are American norms, but then

 2     other cultures develop their own norms.  But the norms that I use and of

 3     course the ones that I did apply here were Exner norms that have been

 4     developed in the United States, yes, in terms of developing the scores

 5     that are then reported, yeah.

 6        Q.   So the scores on the Rorschach tests that were taken by

 7     Mr. Lukic, who is Serbian, his scores were measured against people who

 8     take the tests in America?

 9        A.   Yes.

10        Q.   Now, I'd like to ask you about a --

11             MS. SARTORIO:  Oh, may I admit that chapter of that last book,

12     Your Honour, in evidence on ethics?

13             JUDGE ROBINSON:  Yes.

14             MS. SARTORIO:  Thank you.  I had the ERN if you ... 0648 ...

15             THE REGISTRAR:  Exhibit P309, Your Honours.

16             MS. SARTORIO:

17        Q.   And now I'm going to ask you some questions about another

18     document:  Standards For Educational and Psychological Testing, put out

19     by the American Educational Research Association, American Psychological

20     Association, National Council on Measurement Education, so it's a

21     national -- you're familiar with those standards, are you?

22        A.   Yes.

23        Q.   You're familiar with some of the issues that are discussed in the

24     standards with regard to cross-cultural psychological testing?

25        A.   Not verbatim, but I know the reference there.

Page 6333

 1        Q.   What are some of the problems, sir?

 2        A.   Well, some of the problems are the same ones that are referenced

 3     in the document that you just referred to in terms of the American

 4     Psychological Association:  Sensitivity to cultural differences, norming

 5     issues, and so on.

 6             MS. SARTORIO:  Your Honour, I'd like to admit this chapter in

 7     evidence.

 8             JUDGE ROBINSON:  Yes.

 9             THE REGISTRAR:  Exhibit P310, Your Honours.

10             MS. SARTORIO:

11        Q.   Now, with regard to some cross-cultural problems or issues with

12     regard to the particular tests, you admitted yesterday that on the WASI

13     test, which is an IQ test, you said that only the non-verbal tasks were

14     administered since the verbal tasks would have been confounded by

15     language difficulties through translation.  That's what -- do you recall

16     saying that?

17        A.   Yes, I said that.

18        Q.   So in reality, the score test is not 100 per cent accurate

19     because you could not administer the entire test.

20        A.   Well, you can get a non-verbal intelligence measure from that, so

21     you don't -- you can get a verbal measurement in a non-verbal

22     measurement.

23        Q.   But the test itself, the score is one score, isn't it?

24        A.   You can get a composite score, which would be the summation of

25     the verbal and the non-verbal, but what I relied on is the non-verbal.

Page 6334

 1        Q.   But you would agree with me that to have a really comprehensive

 2     test, you would have to give the whole test.

 3        A.   Ideally, but that would assume language compatibility.

 4        Q.   Right, and you didn't have that here, so it couldn't be the ideal

 5     situation.

 6        A.   No.

 7        Q.   Okay.  Now, I know I mentioned the Rorschach test a minute ago,

 8     but particular words that people may use may not mean the same thing from

 9     one culture to the next.  Do you agree with that?

10        A.   That's true.

11        Q.   And in fact, one of the tests that I read recently, in Sweden, I

12     guess they don't have cockroaches in Sweden.  Have you heard this story?

13        A.   No.

14        Q.   So if someone cease a cockroach in another culture on the

15     Rorschach test, well, someone in Sweden would never say that because they

16     don't have cockroaches there.  So what I'm trying to get at is the

17     Rorschach is really a verbal test.  It depends on the culture, and what

18     the person is seeing from one culture to the next may be different, but

19     that doesn't necessarily mean that that answer from another culture is

20     offbeat; right?

21        A.   Correct.

22        Q.   Now, with regard to the MCMI-III, that's the Million Clinical

23     Multiaxial Inventory.  Now, this is a paper-and-pencil test; is it not?

24        A.   Yes.

25        Q.   And again, the test is written in English?

Page 6335

 1        A.   Right.

 2        Q.   And so his answers had to be translated through Mr. Ivetic to

 3     you?

 4        A.   That's correct.

 5        Q.   And then, again, the answers to -- his answers were then compared

 6     to answers from people in the United States.

 7        A.   Yes.

 8        Q.   And realistically because it is a pencil-and-paper test, it

 9     cannot be said with any certainty whether or not the test was working

10     because, again, something could have been lost in translation or

11     something could have been omitted, intentionally or unintentionally.  So

12     it can't be said with any certainty that the test was working.

13        A.   Not with absolute certainty.

14        Q.   Now, in terms of the test, now, you did go to Bosnia and you

15     spoke with a lot of people, and I did read your sojourn to Srebrenica.

16     Do you think, do you have any reason to believe, or do you think that

17     someone from rural Bosnia would respond in the same way that someone

18     might respond in, say, an American psychotherapy session?

19        A.   Respond to what?

20        Q.   To the answers to that test, provide similar responses.

21        A.   I don't know.

22        Q.   Now, the WASI test, we just talked about, the IQ test, I'm just

23     curious, why did you give an IQ test to Milan?

24        A.   Because I think it's always important to get at least some rough

25     indicator of intelligence, but secondarily to that, the non-verbal

Page 6336

 1     components of the test, or in even the verbal, but the non-verbal

 2     especially will offer in addition a rough screen for organic problems;

 3     for example, on the block design test, patients who tend to demonstrate

 4     systematic problems constructing the pictures with the blocks, systematic

 5     rotations or reversals with the blocks or stacking the blocks and so on,

 6     there are many problems that can arise, begin to alert the examiner that

 7     there may be organic problems here, and it's the same with the matrix --

 8     the second non-verbal test was the matrix test.  There again, with

 9     spatial reasoning and so on, it can raise those questions, so it becomes

10     a rough screen, as well, so it serves two purposes.

11        Q.   And you found that -- I believe you found Milan Lukic to have a

12     lower IQ than you expected?

13        A.   Yes, but in a way that would not be surprising because it's --

14     we're only talking about two sub-tests as opposed to a fully administered

15     WASI in American culture, which would have 13 or 14 sub-tests, so it's an

16     extrapolation from that, but I also have to look at -- you have to look

17     at other indicators.  Have you to look at his activities of daily living,

18     how he functions, his life history, how he's functioned in the world.

19     Certainly he's not mentally retarded or anywhere close to that.  He's not

20     an exceptionally bright man, either, so his generation would fall

21     somewhere in the average to low-average range, and I think that's a fair

22     estimation.

23        Q.   This test also has an aspect to it of effort, so you can measure

24     how hard someone's trying on the test, can't you?

25        A.   Well, not directly other than you can observe effort.  If

Page 6337

 1     somebody gives up easily, for example, they may not be putting in good

 2     effort, if they're reluctant to participate and so on, but by contrast

 3     this subject worked up to the best of his ability as far as I could tell.

 4     He showed good task perseverance.  He worked hard at the task.  That

 5     tells me that he was putting in effort.

 6        Q.   Are there other tests, though, that you can give along with the

 7     IQ tests that do test for effort in conducting the IQ test?

 8        A.   Well, in the American culture there's one test that I sometimes

 9     give.  It's called the Validity Indicator Profile which has a way of

10     measuring the degree to which one is putting effort in in comparison to

11     their own capabilities.  No, I did not give that.

12        Q.   Okay.  Any reason why you didn't?

13        A.   I'm not -- I just didn't.

14        Q.   Now, the Incomplete Sentence Blank Test, again, this is where

15     there's a statement and the person taking the test is asked to complete

16     the sentence; right?

17        A.   Correct.

18        Q.   And again, I think that you would agree that there has to be some

19     type of, you know, cultural problems with this test, again, because it's

20     based on what the person's upbringing was in life, in everything in their

21     life.

22        A.   Well, partly, but, you know, it does have a way of capturing

23     certain attitudes, certain values.  It's a useful device.

24        Q.   But in reality -- I mean, you were down in Bosnia.  It's very

25     different from the US, isn't it?

Page 6338

 1        A.   Yes, it is.

 2        Q.   Now, you also gave the MCMI-III test.  This test is not -- this

 3     test is somewhat controversial, is it not?  It's somewhat criticised.

 4        A.   I'm not aware of a lot of the criticism.  I mean, one criticism I

 5     think that's sometimes levelled is whether or not it's been given to

 6     people.  It's ideally designed for people who are either in early phases

 7     of entering into psychotherapy or have demonstrated some kind of social

 8     problem, so the assumption is that it presumes a certain kind of

 9     psychopathology on the front end.  I'm sure all tests have some body of

10     criticism levelled against them, so this wouldn't be any exception with

11     this test, either, but in my view, certainly the social difficulties he's

12     undergoing are -- would certainly be criterion for social difficulties.

13     I also note that in my own country, the MCMI is routinely administered in

14     correctional settings.  When people are first entering into the

15     correctional system and are being screened for major problem which can

16     also determine where they will be assigned in the prison system, so it

17     does have broad utility.

18        Q.   And just so you know, your system is my system too.

19        A.   Yes.

20        Q.   Okay.  I just didn't know if you knew I was American.

21        A.   I knew that.

22        Q.   There is an article I'd like to ask you about.  It's in the

23     Journal of Personality Assessment, 1996, written by a Paul Retzlaff, and

24     it's called:  "Diagnostic Validity:  Bad Test or Bad Validity Study?"

25     Are you aware of that article?

Page 6339

 1        A.   I can't say that I -- could you show it to me.

 2        Q.   Sure.  It's 0648-8691.

 3             It's not a long article.  It's just not short.  We're not going

 4     to read the whole thing.  But the author does conclude that the operating

 5     characteristics of the test scales are poor in this test.

 6        A.   I have to say, I have not reviewed this article.

 7        Q.   Okay.

 8             MS. SARTORIO:  We'd like to have it admitted in evidence,

 9     Your Honour.

10             JUDGE ROBINSON:  Yes.

11             THE REGISTRAR:  Exhibit P311, Your Honours.

12             MS. SARTORIO:

13        Q.   Now, even -- with regard to this test, even if we accept that the

14     test was accurate given the cultural and possible translation problems,

15     didn't his -- didn't Milan Lukic's responses suggest that he had not been

16     very forthcoming?

17        A.   There are what are referred to as validity scales, and he did

18     show a tendency, if I recall, to be -- as it were, to put his best foot

19     forward, to want to minimise personal short-comings.  That, first of all,

20     is not uncommon in an assessment situation.  Many people do want to do

21     that.  People are applying for a job, for example.  But second of all,

22     you do factor that in, and it was -- it did not reach the point where it

23     invalidated the test, but it certainly has to be acknowledged and

24     considered, and I did acknowledge it in the report.

25        Q.   Okay.  But you -- I think your words that you wanted to minimise

Page 6340

 1     his short-coming, in your interpretive report, you said his "scores

 2     reflect an effort to cover up, a wish fulfillment, not reality.  They

 3     respond to MCMI-III items as they would like others to see them rather

 4     than as they are."  So that's a little bit stronger than he wants to

 5     minimise his short-comings.  It says it's an effort to cover up.

 6        A.   Well, I interpret it as partial cover-up and partial this is a

 7     man who wants you to see him in the best possible light.

 8        Q.   Oh.  Okay.  I apologise for that.  The interpretive report is

 9     actually a computer report that's generated.  You didn't write this?

10        A.   No, that's a computer-generated report.

11        Q.   Okay.  And that's what the computer said, not you.  So I'm sorry

12     I attributed that no to you.

13        A.   I understand.

14        Q.   But that's what that said, that that was an effort to cover up.

15     So I would say that that's a little bit stronger.

16        A.   It's stronger.

17        Q.   Now, the Skid test that you gave, that, to your knowledge, has

18     never been validated in Serbia?

19        A.   Not that I'm aware of.

20        Q.   Now, are you aware of any tests that are translated into several

21     languages and widely used in Europe and especially in the Balkans?

22        A.   Balkans, I'm not aware of.

23        Q.   I'm sorry.  I didn't know if you knew what I meant by the

24     Balkans; the former Yugoslavia.

25        A.   Yes, I understood.  Not that I'm not aware of.  There may be

Page 6341

 1     some, but I don't know.

 2        Q.   Well, there is one, in fact, and it's a very widely used test,

 3     the MMPI-II, Minnesota Multiphasic Personality Inventory Test, is

 4     translated into Serbian, Croatian.

 5        A.   You know, I remember seeing that being offered in a recent

 6     catalog that I received recently, but I didn't know that at the time.

 7        Q.   If you had, that would have been a much better test to give to

 8     Milan Lukic?

 9        A.   Yes, it would.

10        Q.   And what about the Psychopathic Check-List Revised?  Are you

11     familiar with this test?

12        A.   It's actually the PCLR.

13        Q.   Yes, that's right.  And you're familiar with it?

14        A.   Yes, I am.

15        Q.   And doesn't this test actually measure someone's propensity

16     towards criminal behavior?

17        A.   Well, criminal behavior but specifically the focus is on the

18     construct of the psychopathic character.

19        Q.   Right.  So it is kind of geared toward making some type of

20     assessment when there's a hunch that someone may have some

21     psychopathic --

22        A.   Yes.

23        Q.   But you didn't give this test?

24        A.   No, I did not.

25        Q.   Did you think about giving this test?

Page 6342

 1        A.   I thought about it, but I reasoned that since I was going to be

 2     giving the SKID, in particular in any MCMI, that with the SKID I would do

 3     the screening personality assessment and then I would focus - which I

 4     did - specifically on the anti-social personality section, which I did.

 5     And had there been data emerging from that section to suggest psychopathy

 6     as defined in the PCLR, then I would have been able to zero in on that.

 7     But my findings from the anti-social personality section of the SKID did

 8     not demonstrate that he met criterion for that.

 9        Q.   And the SKID is the interview.

10        A.   It's an interview that is administered -- basically, the idea is

11     to ask a series of questions regarding a number of statements, each of

12     which are tagged to various personality disorders.

13        Q.   And so the questions that you use in the SKID are very precise?

14        A.   Yes.

15        Q.   But when the question's translated, you can't guarantee that it's

16     the same preciseness.  Words are different.

17        A.   That's true, but you have the option to ask the patient to

18     elaborate on their answers, and I did ask him to elaborate on any

19     questions it seemed to me were worth further investigation, and I

20     provided those answers.  And review of those elaborated answers, again,

21     assured me that I'm really not seeing the anti-social personality nor the

22     more specific psychopathy construct that I was looking for, and I did

23     keep that in mind that that was something I wanted to be aware of and

24     look at.

25        Q.   Okay.  But how long did the SKID take?

Page 6343

 1        A.   You know, I don't recall exactly.  I don't know how long it

 2     actually took.  It's rather lengthy, maybe two hours.

 3        Q.   So in two hours, you felt comfortable enough that you had made an

 4     assessment that you didn't feel the need to give him a psycho -- a test

 5     that's maybe testing for psychopath?

 6        A.   Well, obviously, I scored it later, but, no -- yeah, you're

 7     right.  I mean, in that during the time of administration, I was becoming

 8     increasingly satisfied that I was not seeing the loading for that

 9     personality disorder which I had specifically decided I was going to look

10     for, that in conjunction with the background, the developmental history,

11     and the rest of it was converging for me on the -- the answer that I'm

12     not seeing the anti-social personality or the psychopathy that I had

13     half-way expected to find.

14        Q.   So from that point on, really, the interview was your focus.

15     Everything that you discussed with Mr. Lukic was -- that seemed to

16     satisfy you further as you went along, so you felt -- you didn't have to

17     give any further test, standardized test.

18        A.   Well, I gave what I brought.  I mean, I could have brought

19     probably a suitcase full of stuff, but I brought what I could carry and

20     what seemed to be reasonable.  I had also anticipated that I - wrongly,

21     obviously - that I would have the opportunity to revisit this evaluation

22     with Mr. Lukic, the purpose of which would be to, if needed, give more

23     testing, and that's always a possibility, or to -- and I specifically

24     entertained that I would be able to focus more specifically on gaps, and

25     there were gaps, on contradictions, and there were contradictions, there

Page 6344

 1     always are, to try to resolve them and loose threads that may have been

 2     there.  But up at least until the time of the war, I feel like I was able

 3     to get from him a very detailed history with a view towards looking at

 4     major indicators of psychiatric disturbance or emerging psychopathy or

 5     anti-social personality trends and so on, and I was satisfied that I was

 6     not seeing that.  And it's generally the case that with these kinds of

 7     diagnoses that I was looking for, that you would begin to see indicators

 8     of it sometimes really quite young.  And even one of the criterion that

 9     needs to be met for the anti-social personality disorder specifically is

10     that there have to be indicators before the age of 15, and often there

11     are, juvenile delinquency and conduct problems and so on.  That wasn't

12     evident there.  So it didn't seem inconsistent that I was not finding it

13     from the assessment, either, because the background was confirming that

14     it's not evident by background -- by self-reported background history,

15     and it's not being reflected in the testing.

16        Q.   Okay.  And I think the operative word there, and we'll talk a

17     little bit more in detail about the interview, but it's the

18     self-reporting interview.

19        A.   Yes.

20        Q.   Right.  And -- now, I want to pick up on a couple of things.

21     That was a very long answer, and I do agree that you had a lot of

22     materials.  I'm still going through your five binders of research

23     material, and I'm very impressed.  But you did say you were hoping to

24     have the opportunity to come back.  What was that all about?  Was that

25     part of the original discussion?

Page 6345

 1        A.   Well, only in vague terms because the understanding with the

 2     attorneys is, you know, Go home, look at your data, write your report,

 3     and see where you're at.  And that's pretty standard operating, but my

 4     practice and it seems to be pretty much routine in capital cases, and I

 5     would consider this a capital equivalent, certainly, to have multiple

 6     opportunities to revisit with the client for a number of reasons, one of

 7     which, obviously, is to resolve contradictions, lingering un-opened

 8     questions.  The other is that you need multiple points of assessment.

 9     You need a -- basically a kind of repeated measures, opportunity to see

10     them in various points in time.  Now, I did have that to some degree

11     here.  I saw him on six different occasions, but I would really classify

12     that as one large observational point in time.

13             But in my typical work in capital cases, I do have the

14     opportunity to go back after some break in time because I want to have

15     time to review the data.  I want to think about it.  I want to look at

16     other literature that's relevant.  I want to metabolise it, so to speak,

17     and then to go back with a more focussed approach.  The first time around

18     is just to get a base-line assessment of where has he been in life, what

19     are his relationships, all that.  But the second time around, with a view

20     towards eventually I want to get -- ultimately, I want to get to the

21     crime scenes, because that's what everybody really wants to know, and

22     that's what I want to know.  But you cannot get there right away because

23     the risk of pushing too fast on that is you lose the rapport with the

24     client, and sometimes if you push too hard or you become too driven to

25     get there, you lose the client.  They will shut off, and you'll never get

Page 6346

 1     it.  So there is a technique.  Have you to be -- you have to work slowly,

 2     develop rapport with a view towards this is where you do want to get, and

 3     that was my hope.

 4        Q.   Okay --

 5             JUDGE ROBINSON:  Judge David has a question.

 6             THE WITNESS:  Yes, sir.

 7             JUDGE DAVID:  In your report as well in your answers today, you

 8     have discussed the concept of life histories.

 9             THE WITNESS:  Yes, sir.

10             JUDGE DAVID:  And I imagine that you are aware of various types

11     of life histories.

12             THE WITNESS:  Yes, sir.

13             JUDGE DAVID:  And I imagine that you are aware of various types

14     of life histories.  One, from a phenomenological point of view, also, you

15     said yesterday phenomenology.  And are you in a clinic that Wisbanger has

16     been very important, in [indiscernible] in other phenomenologies.

17             THE WITNESS:  Yes.

18             JUDGE DAVID:  In a pure narrated sequence as you have done, you

19     could capture only a very limited set of meanings, especially when we are

20     doing this interview in a trans-cultural setting.

21             THE WITNESS:  Yes, I agree with you, sir.

22             JUDGE DAVID:  There are other life histories, and you could

23     remember the work of Sutherland, "The Confessional Thief" --

24             THE WITNESS:  Is that Jacques Sutherland?

25             JUDGE DAVID:  -- the achievement of Sanchez in the

Page 6347

 1     anthropological literature in which the subject, the director of the

 2     experiment is not receiving by the social participant observer.  As a

 3     matter of fact, Louis [phoen] accompanied that family for various times

 4     of the year in the children of Sanchez, and Sutherland interacted with

 5     Chuck Conway, the subject of his book in Chicago many times.  So there

 6     are differences between a certain narrated story and the story that this

 7     Chuck is strategically at points was outside the [indiscernible] the

 8     insights obtained in the interview.  Is that correct?

 9             THE WITNESS:  That's correct.  However, I'm limited as to how far

10     I can fully immerse myself into the world of the subject here.  I mean,

11     in a full phenomenological investigation, you know, I might have lived in

12     his home and spent time with -- living with his family and so on.  This

13     was a very circumscribed set of -- situation in which to evaluate a man.

14     He's a captive in prison --

15             JUDGE DAVID:  We understand the limitation, but I just wanted to

16     propose to you that there are other types of life histories in the

17     scientific literature of anthropology and sociology, comparative

18     psychology, and so on.

19             The second component is this --

20             THE WITNESS:  I'm looking for the reference.  I don't seem to be

21     able to find it at the moment, but I'm aware that the American

22     psychiatrist who was assigned to the detention block to provide medical

23     and psychiatric services to -- this was during the Nuremberg trials -- to

24     the defendants wrote a series -- or actually wrote a book about that, but

25     he had literally months to spend with these men, interacting with them on

Page 6348

 1     a daily basis, and I think I guess ideally to really get to the bottom --

 2     to try to get that sense of understanding of the kind of questions

 3     perhaps all of us struggle with, that's what you would need, and this was

 4     certainly a first effort, but the limitations are very clear, sir.

 5             JUDGE DAVID:  A third question, and I will not, you know,

 6     continue, but it's just for purpose of my own clarification.  You have

 7     discussed the problem of lack of boundaries nonetheless in times of war.

 8     In your report you say that when institutions disappear, the force of law

 9     -- when the force of law breaks down, and then conflicts, especially

10     ethnicity conflict takes over.  You are talking about in a specific

11     situation of great ennui in the word of [indiscernible].  Is

12     that correct?

13             THE WITNESS:  I think if I understand the word you use as ennui.

14             JUDGE DAVID:  Ennui --

15             THE WITNESS:  Yeah, yeah.

16             I think it even went beyond that kind of ennui indifference.  It

17     became a ruthless climate of relentless struggle for survival.  And

18     the -- one of the new ways of thinking about conflict in the world that

19     I've become aware of is that many of the conflicts now and in the future

20     will likely be along ethnocentric lines.  That is, rather than state

21     versus state, it will be cultural group versus cultural group.

22             JUDGE DAVID:  But there is a precaution, as you know Binswanger

23     himself said in his book, "Selective Papers," Harper & Row, page 204 in

24     New York, to say that we are carried away by the forces of destiny

25     including this great conflict situation is only one side of the truth.

Page 6349

 1     The other side is that we determine or serve those courses as our

 2     destiny, which is saying that even in situation of extreme acute

 3     conflict, men still have some capacity to select, to choose, which is to

 4     say that over the unconscious forces that drives you to the conflict,

 5     there are some who still could exercise reason.  Are you agreeing with

 6     this quotation?  You think that everything is -- there are forces that

 7     could not be stopped or redirected?

 8             THE WITNESS:  I think it would probably be overly reductionistic

 9     to assume that behavior in the climates that we're talking about are

10     either due to -- entirely due to personality problems or entirely due to

11     the environmental disintegration problems.  In reality, it's somewhere --

12     there's a mix there, and I agree there is an existential component here

13     of man is still responsible for his actions, and he cannot always control

14     the factors -- the situations that he finds himself in, but he is

15     responsible for making decisions, but -- and I will be talking about this

16     later, but we also know from research that there are certain social

17     conditions that can be so compelling that it's the exceptional man who

18     can resist not going along.

19             JUDGE DAVID:  In your report, you said in relation to Milan Lukic

20     does not of a formal psychotic level under a structure conditions, he

21     will have more difficulty thinking clearly and perceiving understanding

22     people and events realistically.

23             THE WITNESS:  Yes.

24             JUDGE DAVID:  And in another parts of your report, you call him

25     very much a person who will be oriented from the group, not from himself,

Page 6350

 1     that he will have a great propensity to the lines of authority.

 2             THE WITNESS:  Yes.

 3             JUDGE DAVID:  If you have to categorise him following Richmond's

 4     traditional personality types from the traditionally directed, inner

 5     directed, and outer directed --

 6             THE WITNESS:  He's outer directed.

 7             JUDGE DAVID:  He's outer directed, which is to say that the more

 8     important that his own ego will be the pressure from the group.  This is

 9     a characterization of reasoning.  Are you saying so?

10             THE WITNESS:  Yes, I am.

11             JUDGE DAVID:  Okay.  Thank you very much.

12             THE WITNESS:  You're welcome, sir.

13             JUDGE ROBINSON:  Just explain again, outer-directed.

14             THE WITNESS:  My understanding of that term, sir, would be if you

15     ask the question about locus of control, that is, is a person more

16     inclined to listen to and follow the dictates of what is going on

17     themselves, inside their head, versus the dictates and the pull from

18     outside?  Is a person more inclined to go along with what is socially --

19     what is socially expedient, what is socially relevant, what is going

20     around, what is the social norm versus an internal set of norms?  And

21     this man, I have argued, is a man who's far more inclined to go with what

22     has been externally provided in terms of norms of behavior --

23             JUDGE ROBINSON:  Thank you very much.  I understand.

24             Ms. Sartorio.

25             MS. SARTORIO:  Thank you.

Page 6351

 1        Q.   Well, my questions are a lot more mundane and not quite as

 2     interesting and probing, but speaking of -- now I'd like to move on to

 3     what you just alluded to, which is what you seem to have found from your

 4     interviews with Mr. Lukic.

 5             Now, your interview lasted 24 -- approximately 24 hours over a

 6     6-day period?

 7        A.   Yes, but to be quite fair to the time-frame, that would count --

 8     it wouldn't be quite that much when you start factoring in just getting

 9     access to the facility and so on.

10        Q.   Right.

11        A.   So let's call it 19 to 20 hours, you know, in terms of actual

12     in-room time.

13        Q.   And I noticed at the beginning of your report that you did tell

14     us that you shared -- you told Milan Lukic that your report might be

15     shared with others at the Tribunal, officers of the Tribunal, and you

16     also say in your report that you explained to him and he acknowledged

17     that the usual patient-examiner privilege does not exist in that

18     situation.

19        A.   I told him that, yes.

20        Q.   Okay.  So he knew at the beginning of the interview that anything

21     he said could be given to the Prosecution, the judges, the Court, right?

22        A.   Well, I would think that that would have been very obvious, yeah,

23     but I did tell him there's no confidentiality here.

24        Q.   Okay.  So when you say it would have been very obvious, I

25     think -- you told him that?

Page 6352

 1        A.   I told him I'll be writing a report, it'll go to the attorneys

 2     who will share it with the officers of the Court.  I may be called upon

 3     to provide testimony about anything from this evaluation.

 4        Q.   And you also took extensive notes --

 5        A.   Yes, I did.

 6        Q.   -- during your interview.  And I notice in your report, and we've

 7     counted them up.  You have 194 direct quotations of Milan Lukic in your

 8     report.

 9        A.   Oh, okay.

10        Q.   So you did cite -- a lot of your report is just verbatim what he

11     told you.

12        A.   I tried to get citations, yes.

13        Q.   Did you get those down in your notes or did you go back over the

14     tapes?  I believe you said --

15        A.   No.  No tapes.  It's just my furious scribbling at the time.

16        Q.   Okay.

17             Now, when you were compiling your report -- anyway, with regard

18     to the interview, I also want to say that, again, one point I didn't --

19     well, strike that.  Prior to your interview, did you ask for materials to

20     review, or did the lawyers just give you materials?

21        A.   I asked them to send me anything they possibly had about this man

22     that in particular -- well, in particular, that it would have any kind of

23     relevance to his background, to his psychiatric history, educational

24     records, just anything that I would always want to see in forensic

25     evaluation.  I wanted to know as much about his life as possible.

Page 6353

 1        Q.   But normally when you examine or evaluate someone, do you ask

 2     them to provide you with the materials, or do you research it

 3     independently?

 4        A.   Well, I usually get those materials from the attorney.

 5        Q.   From the attorney, okay.

 6        A.   I mean, occasionally someone might come in and want to hand me

 7     something extra, but by and large the bulk of the materials is from the

 8     attorney.

 9        Q.   And what would you consider important documents that you would

10     want to see in this case in evaluating Milan Lukic?

11        A.   Well, I'd want to see -- well, I guess just right from the

12     beginning, if all this were available, I'd want to see school records,

13     health records, any records from psychiatric contacts, juvenile justice.

14     I'd want to see military records.  I'd want to see work reports from

15     employers.  I think I mentioned school, academic.

16        Q.   Criminal records.

17        A.   Yeah, criminal records.  I'd want to see anything at all that can

18     document the kind of man and how he has functioned in various roles in

19     his life at any point in his life, but it's very difficult to often get a

20     comprehensive set of records that provide a true longitudinal picture.

21        Q.   And did you receive all the -- those types of materials that you

22     just mentioned prior to your interview?

23        A.   No.  I received the complaint, an amended complaint, a document

24     describing command structure for the military.  There was a handful of

25     small, miscellaneous items, but nothing really comprehensive.  There

Page 6354

 1     really wasn't much that I could say.  This has given me at least the

 2     beginnings of some picture of who the man is.

 3        Q.   And when you received those documents, did you contact Defence

 4     counsel back and say, I need more information?

 5        A.   I -- I mean, I don't know how often, but I would occasionally

 6     say, Give me what you've got.

 7        Q.   Okay.  And did you get any further documents before the

 8     interview?

 9        A.   I may -- I'm not sure, but I don't -- if I did, it wasn't much,

10     so I really went in -- I guess the term would be rather unvarnished.

11     There just wasn't a lot to go on at that point.

12        Q.   So -- then there probably was not a lot to confront him with,

13     either.

14        A.   No, other than I had obviously read the indictment, so I knew the

15     magnitude of the allegations, which in itself is a major confrontational

16     point.  But I didn't have the other records that would have begun to

17     flesh out more completely the life.

18        Q.   But you didn't have any witness statements or any other facts --

19     when you say the allegations -- the allegations in themselves are major

20     confrontations, but that's true, but that's just a -- you know, an

21     indictment is just a bare-bones --

22        A.   Yeah.  I mean, to clarify, what I meant by that is that's the

23     elephant in the room.  No matter what he tells me about his life, we

24     still have to get to the allegations.

25        Q.   Right.  Okay.  And did you get to the allegations?

Page 6355

 1        A.   I made several attempts to -- in a broad way because I knew that

 2     we're not going to get this fleshed out this time around, just for

 3     example, to say, How do you understand this, that I have a pile of -- I

 4     have a stack of allegations, and what does this mean?  I mean, how can I

 5     reconcile this?  And the standard, I guess to nutshell, would be that's

 6     not true.  But that was not a surprising answer, either, first time

 7     around.

 8        Q.   Okay.  And subsequent to the interview, did you do any -- did you

 9     ask for anymore materials, or did you look for anymore materials to

10     corroborate what he told you or didn't tell you?

11        A.   Are you saying after the interview?

12        Q.   Yes.

13        A.   I still didn't have much.  I mean, what I was ultimately forced

14     to do was to try to look at in terms of written materials.  I mean, you

15     rely on open sources, which are highly unreliable, journalistic accounts

16     and so on, and there are many; read as much as I could about the broader

17     political and historical context.  I read books in that area, but all

18     that -- but what that -- it's helpful.  It's useful to do that because

19     you have to dig in and try to get a sense of the broader historical

20     context, but it doesn't -- all that can tell you is really the world into

21     which this particular man had been immersed, but it doesn't tell me

22     specifically about that particular man, but that's where I had to start.

23        Q.   Right.  Okay.  That's fair enough, but you didn't have any -- you

24     didn't get anything else from -- well, you did at some point get some

25     other documents, didn't you?

Page 6356

 1        A.   I had -- when I came for the evaluation last November, it was at

 2     that time that I then had the opportunity to begin to review documents

 3     relevant to the three witnesses whose records I provided an analysis of,

 4     but that was while I was here.  So I would evaluate Mr. Lukic in the

 5     morning, and then in the afternoon spent the rest of the day looking at

 6     the documents.  So it was concurrent as this was going on, so I was aware

 7     that here are the witnesses, here are the documents relating to those

 8     witnesses, and so on.

 9        Q.   Okay.  So you -- but all you got were the records of the three

10     witnesses that you were asked to review.  You weren't given witness

11     statements, other witness statements or other witness testimony from the

12     trial?

13        A.   No.  I think I looked at a statement by the brother of VG-114,

14     and I believe that's it.

15        Q.   But it was strictly what they chose to give to you, the Defence

16     attorneys?

17        A.   Yes.  I mean, they have volumes of records.

18        Q.   Right.  And --

19        A.   You have to be selective.  At some point, have you to decide what

20     you're going to look at.

21        Q.   True, but it seems to me that if they had volumes of records, if

22     there were other documents that could have shed some light to help you in

23     your analysis, that it would have been important for you to have.

24        A.   If they had been available, I would certainly have looked at

25     them.

Page 6357

 1        Q.   Did you make a request for any types of documents other than what

 2     you said, the school records and criminal records and things like that?

 3        A.   No.  I requested -- I mean, and these would be standard documents

 4     that I would want to look at in any evaluation.  Psychiatric history,

 5     certainly, but all the other things that I've enumerated, and they just

 6     aren't available.

 7        Q.   That's what they said, they're not available?

 8        A.   Well, yeah.

 9        Q.   Okay.  Did you ever ask Milan Lukic if he ever killed anyone, and

10     meaning out of the war context?

11        A.   Out of the war context or within --

12        Q.   Well, within the war context, but not engage in the armed

13     conflict; kill a civilian.

14        A.   I did, and he told me he did not kill civilians.  He did

15     acknowledge that in a combat context, he did take lives.

16        Q.   Okay.  Now -- so really, in reality, the bulk of your report,

17     other than the psychological test, it boils down to what Milan Lukic

18     reported to you.

19        A.   Yes.

20        Q.   And I think this is obvious, but given -- in light of your

21     evaluation, you're not able to say -- you're not able to aid the Court in

22     whether he has a certain personality type or doesn't have that

23     personality type, predisposed to committing crimes.  You really can't say

24     that based on your evaluation?

25        A.   I can say I guess in a qualified way that based upon the

Page 6358

 1     available information I have at this point that I am reasonably confident

 2     that I'm not seeing the indicators that would support a diagnosis of --

 3     and there are several kinds of diagnoses that you would be expecting to

 4     find for someone who would perpetrate a crime, a series of crimes like

 5     this.

 6        Q.   Okay.  But again, the bulk of your data has come directly from

 7     the subject himself?

 8        A.   Yes.

 9        Q.   Now, in terms of your report, did you --

10             JUDGE ROBINSON:  Just a minute, please.

11             MS. SARTORIO:  Thank you.

12             JUDGE ROBINSON:  Is that unusual in your work, that all of the

13     data would come from the subject himself?

14             THE WITNESS:  Well, there will always be contradictions, sir, but

15     what is unusual, more typically when I'm dealing with someone who's been

16     accused of serious criminal acts, and I'm talking specifically about

17     violent acts, homicide, and so on, there will be prominent indicators

18     that will be readily apparent from the developmental history when you

19     take their life history, they'll be right there in various combinations,

20     but you will see certain indicators that already tell you that they are

21     on a path towards destruction later on in life, beginning from

22     maladjustment in childhood, through school relationships as a child, and

23     then up through their adolescence, and so on.  You can already begin to

24     see the markers that show in retrospect they were already moving in this

25     direction.  I'm not seeing those markers in this case.

Page 6359

 1             JUDGE ROBINSON:  I'm not sure if that's what Ms. Sartorio meant.

 2             Ms. Sartorio, were you trying to find out whether he was able to

 3     gather information about Milan Lukic from other people?

 4             MS. SARTORIO:  Yes.

 5        Q.   I wanted to know if you got any information from any other

 6     independent source other than Milan Lukic himself.

 7        A.   Okay.  Yeah, I understand your question.  And normally that is my

 8     practice to do that as much as possible, to get collateral third-party

 9     input, objective as possible.  I considered family, for example, and the

10     Defence team does have some contact with some family members, I'm told.

11     I've never met them.  I looked at that possibility and realised that what

12     I would probably get from family members would be a relatively

13     self-serving report.  They would tell me all that's good and perhaps

14     obscure the negative.  So I can't really rely on that.  I considered

15     friends, people who might know him well, if they were available.  My

16     understanding is that the people -- the two friends that he had who knew

17     him relatively well, both have been indicted, Mr. Vasiljevic, and his

18     cousin, Sredoje Lukic.  I considered, well, what about policemen or

19     soldiers who knew him at the time of the conflict?  My understanding is

20     that all of them are either unavailable or potentially under indictment,

21     so that wouldn't be possible.  You keep going down the list.  At some

22     point --

23             JUDGE ROBINSON:  Doctor --

24             THE WITNESS:  You're out.  You're out of options.

25             JUDGE ROBINSON:  Yes.  If you would consider as relatively

Page 6360

 1     self-serving reports from family members and friends, Ms. Sartorio might

 2     want to ask you how much more would you consider reports from the accused

 3     himself self-serving?

 4             THE WITNESS:  Okay.  Do you want me to answer that question, sir?

 5             JUDGE ROBINSON:  Yes.

 6             THE WITNESS:  Well, obviously that's a risk, sir, that an accused

 7     might be self-serving, but by and large I had no other collateral sources

 8     to really turn to.  Family might have been able to support early

 9     development and so on, but my understanding is that the family was not in

10     the Visegrad or at least not involved with Mr. Lukic at the time, so I

11     don't think that they would have had a perspective on -- of the

12     accusations other than what they've been told.  I even considered UN

13     detention personnel, but the best they would have been able to offer is

14     current adjustment, maybe current health issues, how he's adjusting to

15     gaol, but that doesn't give me the longitudinal perspective.

16             JUDGE ROBINSON:  Thank you.

17             Ms. Sartorio.

18             MS. SARTORIO:

19        Q.   So, Dr. Hough, really, in reality you had, I think, three

20     problems; one is the bulk of the analysis, it was self-reporting on the

21     part of Milan Lukic, that's one; and, two, his lawyer who is bound,

22     ethically bound to have his interests, best interests and his actions;

23     and then, three, you've got the translation problem.  My question to you

24     with regard to the second aspect, if Milan Lukic had told -- had answered

25     a question or said that he had killed millions of Bosnian civilian

Page 6361

 1     Muslims, in June and July of 1992, do you think his lawyer from an

 2     ethical standpoint would have been able to tell you that?

 3             MR. ALARID:  Objection to the form of the question; objection to

 4     the hypothetical.

 5             JUDGE ROBINSON:  The witness is an expert, and we're able to put

 6     hypothetical questions to the expert.

 7             THE WITNESS:  If I understand your question right, would the

 8     attorney been able to divulge that, had there been a disclosure of that

 9     nature, a very self-indicting disclosure, that probably would have put

10     him in a conflict, but I don't know.

11             MS. SARTORIO:

12        Q.   Okay.  Now, in terms of your report - I keep saying that, but I

13     want to get -- did you do a draft report first and then submit it to

14     Defence counsel and then get feedback and then submit another report?

15        A.   No, I did not.

16        Q.   How was it that you were contacted by the Defence?  Did they

17     contact you or ...

18        A.   No, actually, I contacted Mr. Alarid.

19        Q.   Oh.  Okay.  And for what purpose?

20        A.   Because I was interested in becoming involved in work at the

21     Tribunal.

22        Q.   And do you know Mr. Alarid personally?

23        A.   Not out -- no.  Well, I mean outside the work in this case, no.

24        Q.   So how did you -- you just decided to pick up the phone and --

25     you picked a Defence attorney or you watched on the internet or ...

Page 6362

 1        A.   I mean -- no, no.  I have a good friend in Topeka, Kansas, named

 2     Mr. Kirk Kearns [phoen], and he knew that I was interested in this kind

 3     of work, and he gave me a name of a firm in Chicago, and I talked with

 4     them, Mr. Ostojic, and Mr. Ostojic said, Why don't you calm Mr. Alarid?

 5     He's got a case.  And so I did.  I went to see him, and we agreed to work

 6     together.

 7        Q.   So, did you -- when you made that first contact, did you -- so

 8     you offered your services in what capacity?  Did you tell him you would

 9     examine his client for competency?  Or what did you tell him?

10        A.   Well, I told him, you know, I'm a psychologist, and this is the

11     kind of work I do, and if you need -- if there are issues that are

12     relevant, that I can provide services.

13        Q.   Okay.  And that's probably not the usual way that you get

14     involved in forensic cases, is it?

15        A.   No, but sometimes you have to knock on a door.

16        Q.   Okay.  That's fair.  Now, I'm going to talk about the substance

17     of the report.  Part of the purpose of your report, and I think it's

18     up-front, was to obtain his "views regarding actions during the Balkan

19     war in Visegrad."  Is that correct?

20        A.   Yes, that's in the statement.

21        Q.   And on page 11 of your report, you state:  He did not feel the

22     tension of emerging war.  Such tensions may have been experienced by the

23     people who lived there, but not for him."  Do you remember writing that?

24        A.   Yeah.  Can you direct me specifically, though, so I can track

25     with you.

Page 6363

 1        Q.   Sure.

 2             MR. ALARID:  Can we put the report on the screen?  It might

 3     facilitate the Court following along as well.

 4             JUDGE ROBINSON:  Yes, let's do that.

 5             MR. ALARID:  We have it uploaded as 1D22-0735.

 6             MS. SARTORIO:  The end of the third paragraph -- first paragraph.

 7             THE WITNESS:  End of the first paragraph.  Okay.

 8             MS. SARTORIO:

 9        Q.   Page 11.

10        A.   Yes, I'm with you.

11        Q.   Is that page 11?

12        A.   Yes.

13        Q.   Okay.

14             MS. SARTORIO:  Could you scroll down, please.  Sorry I had it

15     typed up in my notes.  It's the last sentence of the first paragraph.

16             "He did not feel the tension of emerging war.  Such tensions may

17     have been experienced by the people who lived there but not for him."

18        A.   Yes --

19        Q.   Okay.  Now I'd like to go to page 24.  The third paragraph.

20     You're talking about the friends -- "once the war began, all his friends

21     began to gravitate to their respective ethnic sides.  Many people heard

22     the propaganda and subsequently went to war for their own representative

23     groups."

24             Do you see that?

25        A.   Yes.

Page 6364

 1        Q.   Okay.  Now, this kind of seems contradictory to me, so which is

 2     it?  Did he feel the tensions, or did he not feel the tensions?

 3        A.   He told me that when he went to visit his family in Visegrad in

 4     January that he wasn't feeling the tensions yet.  He went to the store

 5     run by a Muslim family; the lady was very nice to him; she saw his

 6     license plates; he was from Belgrade, the car; she let him use his phone;

 7     tensions were emerging, but he wasn't feeling it.  This description in

 8     Zurich when the young men were beginning to watch the television scenes

 9     and so on, he described how they began to diverge into their various

10     groups.  I mean, the tensions were obviously there.

11        Q.   But he minimised them in terms of himself?

12        A.   Yes.  In fact, you know, I would say I was quite surprised how

13     slow he seemed to have been to really grasp the gravity of war is coming.

14        Q.   And you just believed him because that's what he told you.

15        A.   Well, his descriptions were consistent across time, and he sort

16     of laughed at himself, you know:  How could I have been so naive?

17        Q.   Okay.  Another question to you is when he talked to you about the

18     White Eagles, I noticed that yesterday you were testifying about that,

19     and it seems like he described them in quite some detail, that the White

20     Eagles consisted of approximately 50 to 80 individuals, and he knew their

21     commander, and on and on.  Did you ask hm him how he knew so much about

22     the White Eagles?

23        A.   No, I didn't ask him that.

24        Q.   Did you know that that was an allegation in the case, that he's a

25     member or works in groups that have committed crimes with the

Page 6365

 1     White Eagles?

 2        A.   I'm aware of that.

 3        Q.   Were you aware of it at the time you interviewed him?

 4        A.   Yes.

 5        Q.   So did you probe late bit more?

 6             MR. ALARID:  And I would object to the question as misstating the

 7     evidence.  He was alleged to be the leader of the White Eagles.

 8             MS. SARTORIO:  Oh, excuse me.  Yes.  I stand corrected.

 9        Q.   But did you probe that further because it is a part of the case.

10     Did you know that before the case?

11        A.   I knew it before the case.

12        Q.   And so when you start talking about this, did you sort of hone in

13     on this?

14        A.   No, not at that point.  I'm not sure why other than I may have

15     been saving it for a return back to the topic, but I wanted to get kind

16     of a base-line description from what he was telling me about the way

17     things were.

18        Q.   Okay.  Now, you also say in your report, and again, after the age

19     of 15 the only legal problems he has had are the current one related to

20     the ICTY.  Do you remember saying that, or do you want to find that?

21        A.   Yes.  No, I remember.  That's what he told me.

22        Q.   Do you still -- has that changed?

23        A.   In terms of legal problems before the age of 15?

24        Q.   After the age.  It says after the age.

25        A.   Oh, I'm sorry.  That must be a mistype.  I apologise to the

Page 6366

 1     Court.  It should read before.

 2        Q.   Okay.

 3        A.   Because I'm veering specifically on the anti-social personality

 4     diagnosis.

 5        Q.   So you need to make that correction then on the record that that

 6     it's supposed to be before the age of 15.

 7        A.   Can you tell me what page that's on, please.

 8        Q.   Page 8.

 9        A.   Page 8.

10        Q.   The second paragraph.  The second sentence in the second

11     paragraph.

12        A.   Well, let me correct, then.  No, that would be correct.  After

13     the age of 15.

14             JUDGE VAN DEN WYNGAERT:  Excuse me, Ms. Sartorio, while you're

15     looking things up.  I'm a bit at a loss, and I'm sorry because I wasn't

16     able to be present yesterday, but I'm wondering where this is leading us

17     to, this part of the evidence, which I think is very interesting from an

18     academic point of view, but what does it help?  Does it now have any

19     relevance for us to assess the criminal responsibility of the accused?

20     Does it say something about the mens rea or -- I'm just trying to

21     understand why we need this evidence and whether we should pursue with

22     it.  Could the parties help me with this?  Mr. Alarid, perhaps?

23             MR. ALARID:  I'd prefer not to comment on where the Prosecution

24     is going on this.

25             JUDGE VAN DEN WYNGAERT:  It's your witness.  You brought the

Page 6367

 1     evidence, so I would wish to know from you why you were bringing this

 2     evidence and what the relevance of it is.

 3             MR. ALARID:  The relevance is within the confines.  I understand

 4     the Prosecution's objections, and it's always an issue of weight.  But

 5     within the confines of what this expert was able to achieve in the

 6     psychoanalytical setting, with all those strengths and weaknesses

 7     conceded, it simply is to assess this human being, and I think he's done

 8     so, whether it's from a leadership versus ordinary man perspective,

 9     whether it's from an intelligence to an above-intelligence perspective.

10     And also in hopes of giving you a little bit more of a cultural

11     perspective of this individual, where he came from, what were the social

12     factors that were involved in who he was.  I mean, we've seen some

13     pictures of him as a young man, but very little to be able to tie that

14     together to help you assess because I think it is important to asses this

15     individual's capacity for leadership, his intelligence because the

16     allegations at the front side were so specific.  He wasn't alleged to be

17     a member of the White Eagles.  He was alleged to be the leader of the

18     White Eagles, so much so that his 8-year-senior cousin, a formal police

19     officer, would fall into rank step behind him, and that's how this case

20     was originally pled.  Now the theories of liability may have changed over

21     time, but as alleged, that was important, and I think that that's what we

22     were attempting to accomplish and differentiate from the theory presented

23     by the Prosecution.

24             JUDGE VAN DEN WYNGAERT:  Thank you, Mr. Alarid, but with all

25     respect I think we're spending a lot of time on this, and we've got your

Page 6368

 1     message, and I would really wish to proceed in a faster space.

 2             MS. SARTORIO:  Well -- okay, Your Honour.  The first part with

 3     regard to --

 4             JUDGE VAN DEN WYNGAERT:  Mr. Cepic is on his feet.

 5             MR. CEPIC:  I apologise, Your Honour, but I have to react related

 6     to those allegations, which I just heard from my friend Mr. Alarid

 7     related to the 8-years-older cousin.  Thank you very much, just for the

 8     record.  Nothing further.  Thank you very much.

 9             MS. SARTORIO:  Your Honour, I maybe have 10, 15 minutes more on

10     the report.  I mean, I feel that if the Court's going to accept the

11     report in evidence, then we have to do our job and put in what we feel

12     the report -- the issues with the report, so I realise it's not -- it

13     goes to sentencing, perhaps, mitigation.

14             JUDGE VAN DEN WYNGAERT:  That's the only thing I can see in it.

15             MS. SARTORIO:  Right.

16             JUDGE VAN DEN WYNGAERT:  But to assess the mens rea, I don't

17     think this is going to help us very much.  So if you could please

18     restrict yourself to the minimum.  Thank you.

19             MS. SARTORIO:  Okay.  I will.  Okay.

20             THE WITNESS:  Before you proceed, may I -- because you had asked

21     me about the age 15, I just want to clarify.  After having looked at the

22     document, it would be correct as it stands, so I would apologise for the

23     misstatement.

24             MS. SARTORIO:

25        Q.   Okay.  So it is after the age of 15.

Page 6369

 1        A.   Yes.  My apologies.

 2        Q.   No problem.

 3             Now, in the group of materials, you noticed that there was a

 4     judgement against Milan Lukic and three other perpetrators, and the

 5     judgement says that they tortured violated life and person, murdered

 6     civilian persons, and it's about stopping a bus carrying Bosnian Muslim

 7     men, ordering them at gun-point to get off the bus, and then proceeding

 8     to abuse them physically, beating them with wooden sticks and then

 9     finally killing them.  He was convicted of that crime, and in the

10     materials you gave to us the other evening, I noticed you have the

11     judgement.

12        A.   Okay.  You know, I remember us talking about the bus incident.  I

13     don't remember having reviewed that document, but if it's in my file, I

14     obviously did.

15        Q.   Well --

16             MS. SARTORIO:  I'd like to admit the Severin judgement into

17     evidence, Your Honour.  It directly contradicts a report of the expert,

18     and it was received in response to an RFA, and I have the RFA here int he

19     response.  It's perfectly -- it's an authentic document.

20             JUDGE ROBINSON:  What's the Severin judgement?

21             MR. ALARID:  Your Honour --

22             JUDGE ROBINSON:  Mr. Alarid.

23             MR. ALARID:  The Severin judgement was a judgement that was

24     obtained in absentia while Mr. Lukic was out of the country and also

25     under indictment for this particular charge.  It was never defended; he

Page 6370

 1     was never arrested on it.  And so from the standpoint of his

 2     participating in the legal process, I understand the point the

 3     Prosecution's making, but attempt to admit the judgement through this

 4     witness is improper, and it's an improper attempt at introducing

 5     character evidence in showing of the consistency and pattern of conduct

 6     that is not supported by the evidence.  We would have to have an

 7     additional trial within a trial to explore the Severin issue, and that

 8     would be a waste of the Court's time considering that we are focussing on

 9     the specific dates in June of 1992 as opposed to anything that was

10     obtained in absentia without the benefit legal counsel defending him and

11     with this person being present, and he does have a right to request to

12     retry that case in Serbia.

13             JUDGE ROBINSON:  Ms. Sartorio.

14             MS. SARTORIO:  Your Honour, the judgement speaks for itself.  You

15     can give it whatever weight you want, but it does contradict the report,

16     and Mr. Hough had this in his possession, and it didn't factor into his

17     report, and I think that it speaks for itself in that sense.

18             MR. ALARID:  And then she can cross him with that and for the

19     implications that that has to his report, but why do we need this

20     extraneous material that has no relevance on the charges today?

21             MS. SARTORIO:  Well --

22             JUDGE ROBINSON:  Mr. Hough had the judgement?

23             MS. SARTORIO:  Yes.

24             JUDGE ROBINSON:  That's fine.  We'll admit it.

25             MS. SARTORIO:  Thank you.

Page 6371

 1             THE REGISTRAR:  Exhibit P312, Your Honours.

 2             MS. SARTORIO:

 3        Q.   And now, there's just a couple more.

 4             MS. SARTORIO:  0644-6149, please.  Could the court usher please

 5     bring that up on the screen.

 6        Q.   And while that's coming up on the screen, on page 31 of your

 7     report, and that's the whole subject of your report, you drew the

 8     conclusion that Milan Lukic is quote "clearly a follower, not a leader."

 9     That's your conclusion; right?

10        A.   Yes.

11        Q.   Okay.  And as soon as this document ...

12             MS. SARTORIO:  And could we go to the second page of the report.

13     Well, actually, go to the first page.  I apologise.

14        Q.   Now, sir, do you see that this is a record of interview with the

15     accused and then -- you'll see down on the right, it says Milan Lukic.

16        A.   Could you direct me with the scroller?

17        Q.   Yes.

18             MS. SARTORIO:  Could you just highlight the top portion.

19        Q.   On 30 October 1992, and it goes on, it's a record of interview

20     with Milan Lukic.

21        A.   Yes, I see it.

22        Q.   Okay.

23             MS. SARTORIO:  Now, could we go to the second page, please.

24     Sorry, page 3.  I apologise.  Page 3.  Sorry, Your Honours.  Page 3.

25        Q.   Now, it's a long paragraph, but I'd like you to read, and I could

Page 6372

 1     read it out loud, but I would like to admit this document in evidence.

 2     Would you read the paragraph, sir?  "I finally returned from Germany ..."

 3        A.   Okay.  "I finally returned from Germany, or rather, from

 4     Switzerland, on 10 April this year when the conflict began between the

 5     Serbs and the Muslims in Bosnia.  I reported to the Visegrad Territorial

 6     Defence Staff in order to participate in Serbian combat operations for

 7     the liberation of Visegrad.  I have been engaged continually in combat

 8     activities ever since.

 9             "I was a member of the Obrenovac Detachment, which is a special

10     unit attached to the Visegrad SUP.  Since the group was composed of

11     people from the outskirts of Visegrad who mostly lived in Serbia, we had

12     special training.  We were later attached to the Visegrad Territorial

13     Defence as a company of volunteer guards called Osvetnik/avenger.  I was

14     and still am the commander of this detachment.  Usually, the detachment

15     had 25 to 50 members, but the composition fluctuated, as some members

16     left and new ones joined."

17             That's the paragraph.

18        Q.   Now, does the fact that he says in that recorded interview here

19     he was the commander, doesn't that suggest to you a leadership position

20     and not a follower?

21        A.   Well, you know, I wondered about that.  Was that document signed?

22        Q.   Well, you have the English version and --

23        A.   Okay.  That's what he told the people who were interrogating him

24     at the time.

25        Q.   But you didn't include that in your report?

Page 6373

 1        A.   Actually, I hadn't read that document until after.

 2        Q.   Okay.  But after you read it, you didn't amend the report?

 3        A.   No.

 4        Q.   Okay.

 5             MS. SARTORIO:  Your Honours, I'd like to have this document

 6     admitted in evidence, please.

 7             MR. ALARID:  I believe it was admitted --

 8             MS. SARTORIO:  Not this one.  I don't believe it was.

 9             MR. ALARID:  This was admitted in the OTP case when the

10     officer --

11             MS. SARTORIO:  No, that's another one.  We're getting to that

12     one.

13             MR. ALARID:  Okay.

14             MS. SARTORIO:  I believe --

15             JUDGE ROBINSON:  Very well.  We'll admit it.  If we discover

16     we've already admitted it, then we'll deal with that.

17             MS. SARTORIO:  My case manager with check.

18             THE REGISTRAR:  It's admitted as Exhibit P313, Your Honours.

19             MS. SARTORIO:  Could the court officer please bring up 0422-4603.

20             JUDGE ROBINSON:  Now, Ms. Sartorio, in the document we have just

21     admitted --

22             MS. SARTORIO:  Yes.

23             JUDGE ROBINSON:  -- what it said is that he was and still is the

24     commander of a detachment.  That's of a military unit.

25             MS. SARTORIO:  Yes.  This document right here.  Yes.

Page 6374

 1             JUDGE ROBINSON:  Yes, the one we just admitted.

 2             MS. SARTORIO:  Yes, that's what he said.  It was his -- it was an

 3     interview of Milan Lukic where he said he was the commander.

 4             JUDGE ROBINSON:  And you would want to say that that

 5     contradicts --

 6             MS. SARTORIO:  Yes.

 7             JUDGE ROBINSON:  -- the leadership claim?

 8             MS. SARTORIO:  Yes, as well as -- yes.  And the same --

 9             JUDGE ROBINSON:  I don't believe that that is how I understand

10     the argument in the indictment that he's a leader, a leader of a

11     paramilitary group.

12             MS. SARTORIO:  Well, certainly, he wasn't -- our position is that

13     he was not a follower; he was not a passive follower, which I think is

14     the conclusion reached, so we do dispute that.

15             JUDGE ROBINSON:  I believe that they are different qualities

16     entirely, being a commander of a military detachment and an allegation

17     that one has leadership attributes based specifically on a claim that one

18     is a leader of a paramilitary group.

19             MS. SARTORIO:  Well --

20             JUDGE ROBINSON:  I believe the army factor, I believe the army

21     factor makes that claim invalid, but the fact that you are a commander of

22     a contingent to my mind doesn't necessarily mean that you have leadership

23     attributes.  You may, I suppose.

24             MS. SARTORIO:  Right, but I think also the point is that

25     Dr. Hough did admit to reading this document, and he did not -- it's not

Page 6375

 1     a criticism of the doctor.  He wanted to see the accused again, but he

 2     did not confront the accused with that and ask him about it.  And I think

 3     that that goes to the credibility of the report issue.

 4             JUDGE ROBINSON:  Yes.  Yes.

 5             MS. SARTORIO:  Okay.

 6        Q.   The document in front of us, as you can see, it's a military

 7     certificate, and it's a certification that Milan Lukic is the commander

 8     of a sabotage and Reconnaissance group.  Now, I would submit that a

 9     commander of this kind of special unit group particularly would have

10     qualities of a leader and not a follower.  This seems like a type of

11     special forces group.

12             MR. ALARID:  Objection, assumes facts not in evidence.

13             MS. SARTORIO:  We'd like this admitted, Your Honours.

14             JUDGE ROBINSON:  Yes, we'll admit it.  Let move on quickly.

15             THE REGISTRAR:  Exhibit P314, Your Honours.

16             MS. SARTORIO:

17        Q.   So, Dr. Hough, you would agree with me, though, that, these

18     documents may appear to contradict what Milan Lukic told you.

19        A.   Well, on the second document, the certificate, I haven't seen

20     that document before.  I haven't studied it or tried to put it into

21     context, so the answer I would give you would be qualified, but on the

22     face of it, it would seem to contradict that, but it also supports in my

23     understanding his claim that he had always been within the command

24     structure of the military and not outside of it.  The paramilitary would

25     be -- my understanding would be outside the command structure, the more

Page 6376

 1     of a rogue element.

 2        Q.   But you're not sure because you -- did you study --

 3        A.   Did I study this document?  It's the first time I've seen it.

 4        Q.   Right, but you didn't study the military structure of the Bosnian

 5     and Serbian Army?

 6        A.   I looked at it, but it was pretty complicated, so I don't

 7     understand it.

 8        Q.   I agree.  I totally with you.  Okay.

 9             Just one last point.  There's a part of your report -- well, you

10     mention that he said he was the president of the veteran's association

11     and that all five local commanders voted him in, and that there were

12     thousands of soldiers scheduled to vote.

13        A.   That's what they tell me, or a thousand.

14        Q.   Again, to me, this appears to be an inconsistency.  You're the

15     president of a thousand-man organisation.  Is that the quality of leader

16     or a follower?

17        A.   Well, what he told me is actually he'd been nominated to be

18     president but he declined and conferred that leadership position to

19     someone who was an attorney, that he'd been nominated because of his

20     actions as a soldier.  That he'd been recognised as a pretty heroic

21     combatant.

22        Q.   But I don't believe you said that in your report that he was

23     nominated and stepped down.  I believe you said he was elected.  I have a

24     direct quote.

25        A.   Okay.  What page?

Page 6377

 1        Q.   Page 23.

 2        A.   Okay.

 3        Q.   So it's the second paragraph under section 5, After the War.

 4             MS. SARTORIO:  This is my last question, Your Honours, on this

 5     subject.

 6        Q.   So you said he was --

 7        A.   My reading is that he'd been offered the position.  He'd turned

 8     it down.

 9        Q.   Oh, I see.  I'm sorry.  I do apologise.  That's next.

10             MS. SARTORIO:  Okay.  All right.  Is it time for the break?

11             JUDGE ROBINSON:  Yes, it is.  We'll adjourn.

12                           --- Recess taken at 3.51 p.m.

13                           --- On resuming at 4.12 p.m.

14             JUDGE ROBINSON:  I'll take this opportunity to deal with some

15     administrative matters.  First, Mr. Alarid, your request for

16     Marie O'Leary to examine Cliff Jenkins, can you tell us about her

17     qualifications?

18             MR. ALARID:  Yes, Your Honour.  She's a licensed attorney,

19     licensed since 2006.

20             JUDGE ROBINSON:  Where?

21             MR. ALARID:  In Minnesota, to practice before the bar in

22     Minnesota.  She's practiced with the public defender's office, but she

23     came out here and engrained herself in the system, of which she's spent

24     the lion's share of her career, in the support roles of legal assistant.

25     She was also the head of the ADC, the administrative head of the ADC, and

Page 6378

 1     then transferred to -- she's currently assigned to the Djordjevic case,

 2     and that's why she had to leave our case because of the time constraints

 3     and the start-up of Djordjevic, in which she had previously engaged, but

 4     we had thought that this would be over before trial actually started, and

 5     that's why you haven't seen her for the last month and a half or so.

 6             JUDGE ROBINSON:  I understand that a similar procedure was

 7     followed in the Milutinovic case.

 8             Mr. Ivetic.

 9             MR. IVETIC:  That is correct, Your Honour.  I had one of my legal

10     assistants Mr. Boris Zorko lead one of our Defence witnesses, and I

11     believe Mr. Ackerman had Ms. Nadia Zed cross-examine one of the OTP

12     witnesses in that proceeding.

13             JUDGE ROBINSON:  We're going to allow it in the exceptional

14     circumstances.  We want to ensure that you have as much time as possible,

15     Mr. Alarid.

16             MR. ALARID:  To be honest, this would give me some time to do

17     some housekeeping because a lot of things have come down, and there's a

18     lot of short-term deadlines that we're trying to keep -- including trying

19     to get our subpoena witnesses here for next week.

20             JUDGE ROBINSON:  For example, the Trial Chamber would hope that

21     it would give you enough time to proof Milan Lukic for Monday.

22             MR. ALARID:  To begin putting him on?

23             JUDGE ROBINSON:  Yes, to begin.

24             MR. ALARID:  Well, we don't -- to be honest, Your Honour -- and I

25     wish it were different.  In my town, you can go visit in the gaol on the

Page 6379

 1     weaken.  Here, you cannot, and it's against the UNDU policy, so with

 2     tomorrow's double session and Mr. Ivetic being my sole source to the

 3     language, we're probably pretty much obligated to be here, even with

 4     Marie conducting the exam, so I wouldn't be able to give you that kind of

 5     quality proofing by Monday, Your Honour.  I think that would be

 6     unrealistic, definitely unrealistic.

 7                           [Trial Chamber and legal officer confer]

 8             JUDGE ROBINSON:  In that case, who would you have on Monday?

 9             MR. ALARID:  Right now, Your Honour, two -- we have confirmed two

10     of the subpoena witnesses, and we're trying to facilitate getting them

11     here, but interesting, the VWS says we have to submit the WIF information

12     for witnesses that really are subpoenas, so they're not under our

13     umbrella of influence in any way, shape, or form.  So we're trying to

14     figure out how to get them here in short order.  But other than that,

15     Your Honour, with Mr. Jenkins concluding and absent Mr. Lukic, we would

16     not have witness for Monday, and --

17             JUDGE ROBINSON:  Seems a terrible waste.

18             MR. ALARID:  And potentially we could close our case.

19             JUDGE ROBINSON:  Or you could close your case on Monday?

20             MR. ALARID:  I mean, that's a possibility without -- well, no,

21     that's not true.  We need the subpoenas to come.  We do need those two

22     witnesses that we've got confirmation on, but I'm concerned because

23     there's really not a system in place for Defence to bring subpoena

24     witnesses.  It's just a void, if you will, in consideration, and so we're

25     trying to bridge that gap.

Page 6380

 1             JUDGE ROBINSON:  With regard to Marie O'Leary, I should tell you

 2     that my -- you will be contacted in relation to the power of attorney

 3     that's to be provided.  Somebody will be contact to give you assistance

 4     in that regard.

 5             MR. ALARID:  Thank you, Your Honour.

 6             JUDGE ROBINSON:  Now I must also say that the Chamber is making

 7     arrangements to sit full days, morning and afternoon from now until the

 8     end of the trial, subject, of course, to minor possible changes.  And of

 9     course, you know that there is no hearing on Tuesday, the 31st of March.

10             MR. ALARID:  Hillary's in town, I take it.  That's what I've

11     heard.

12             JUDGE ROBINSON:  Yes.

13             Milan Lukic's case will therefore end on Friday, the 3rd of

14     April, if he testifies.  If he does not, then this may be moved up to

15     Wednesday or Thursday.  That time-frame, of course, will allow for

16     consideration of the pending motion to amend the Defence witness list

17     plus the two confirmed subpoena witnesses.  And then, rebuttal and

18     rejoinder, Monday the 6th to Wednesday the 8th of April.  Chamber

19     witnesses and housekeeping matters, Thursday the 9th of April.  Filing of

20     final briefs by all parties, Wednesday the 15th of April.  The closing

21     arguments are set for the 21st of April.  And pursuant to the order of

22     the 11th of March, each party has been allotted one hour unless otherwise

23     determined by the Chamber.

24             Now, Mr. Groome, yesterday I had said to you, get Dr. Will Fagel.

25     But on further reflection, it seems to us that the better course is only

Page 6381

 1     to hear him in your rebuttal case proper because he is to testify about

 2     five documents allegedly signed by Risto Perisic, and that's a subpoena

 3     witness.  We are not certain whether he's coming.  Then a map of the

 4     Drina River allegedly written by Milan Lukic.  Of the five documents, one

 5     is in evidence, and the map will only be admitted if a particular witness

 6     testifies, so it would seem to be waste of the Court's time to hear Fagel

 7     before the documents are admitted.  So I trust that will not be a severe

 8     inconvenience for you, Mr. Groome.

 9             MR. GROOME:  I will contact him, Your Honour, he's given me some

10     available dates, but I need to check back now that I have these new

11     dates, Your Honour.

12             JUDGE ROBINSON:  Now, the Chamber will have to request expedited

13     responses to pending motions, and I set them out as follows.  Let us deal

14     with this in private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 6382











11  Page 6382 redacted. Private session.















Page 6383

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13                           [Open session]

14             THE REGISTRAR:  We're in open session, Your Honours.

15             JUDGE ROBINSON:  Ms. Sartorio, my colleague is urging speed.

16             MS. SARTORIO:  Yes, Your Honour.  I will endeavor to speed along.

17     I have fewer questions on this part than the first part.

18                           [The witness takes the stand]

19             MS. SARTORIO:

20        Q.   So, Dr. Hough, now I'd like to turn your attention to the three

21     letters that you wrote to Mr. Alarid about three of the Prosecution

22     witnesses.  That's the -- it will be -- the remaining questions of you

23     will be based on these letters.  And again, yesterday you said you had

24     never met or spoken with any of the witnesses; correct?

25        A.   That's correct.

Page 6384

 1        Q.   Right.  And therefore, it follows that you have never had

 2     evaluation of them in order to do a proper diagnosis.

 3        A.   That's correct.

 4        Q.   Okay.  So you're not really able to say to the judges to any

 5     standard that you are held to as an expert in court that these women are

 6     suffering from post-traumatic stress syndrome?

 7        A.   No, although I do acknowledge that VG-063 informs from records

 8     that she has been diagnosed elsewhere, but, no, not form -- I can't

 9     diagnose directly, no.

10        Q.   Okay.  Well, we will get into that because I think that that's --

11     well, okay.  We'll get into that in a minute.  But the fact that someone

12     says they might be into psychiatric care, or may agree to a suggestion

13     they have post-traumatic stress syndrome, you really can't draw any

14     conclusions from that.

15        A.   That's correct.

16        Q.   And obviously, you're not able to offer any scientific proof that

17     any of these women are suffering from a disease that would give them a

18     faulty memory?

19        A.   No.

20        Q.   And even if you did think, even if we did agree that they were

21     suffering from PTSD, you still can't say whether they have a faulty

22     memory?

23        A.   No, and I agree.  It doesn't follow that even having that

24     diagnosis necessarily means have you a faulty memory.

25        Q.   Okay.  And PTSD, and I've learned a lot about that in the last

Page 6385

 1     couple of weeks, but it is a specific diagnosis of the DSM, the diagnosis

 2     book that doctors and psychologists and psychiatrists are held to in the

 3     US; right?

 4        A.   That's right.

 5        Q.   They are probably elsewhere.

 6             And there are specific symptoms of PTSD, and one is flash-backs;

 7     right?

 8        A.   That's correct.

 9        Q.   So the typical example we hear about is the person in the Vietnam

10     war where they all of a sudden are in the middle of the room, they're

11     doing nothing and then they get a flash-back of something that happened

12     on the combat field.

13        A.   Yes.

14        Q.   Okay.  From the records that you reviewed of all these of these

15     witnesses, did you see anything at all to indicate that any of these

16     women had flashbacks?

17        A.   No.  However, let me qualify the diagnostic issue, which is that

18     flash-backs are, yes, typically observed but not always.  There are a

19     number of ways in which intrusive ideas or images can be experienced, but

20     flash-backs is certainly common.

21        Q.   Okay.  So for PTSD, have you to have something that we just

22     talked about.  There has to be an avoidance behavior, right, some time of

23     avoidance behavior, a numbing, and there's other buzz words that are used

24     in the diagnosis.

25        A.   Yes.  Yes.

Page 6386

 1        Q.   So really, you can't -- from just looking at the statements and

 2     the testimony, you can't diagnose whether these women have any of these

 3     symptoms?

 4        A.   No.

 5        Q.   Now, would you agree with me that there's no scientific proof

 6     that post-traumatic stress syndrome or trauma would cause a person to

 7     report facts inaccurately?

 8        A.   No, there's nothing from that diagnosis to compel a claim that

 9     there would be inaccurate reports.  It does happen, but it doesn't follow

10     that if this diagnosis then automatically there will be inaccurate

11     reports.

12        Q.   And in fact -- and I'm going to talk about this in a few minutes,

13     but there's a difference between the word inaccurate and inconsistencies;

14     correct?

15        A.   Yes.

16        Q.   Right.  So if anything, that there's -- there are articles out

17     there, and people have opined, that there might be some sort of

18     association between severe trauma and inconsistencies.

19        A.   Yes.

20        Q.   Okay.  But nothing that you know of in terms of measuring

21     accuracy.

22        A.   No, other than general observations and statements, but in terms

23     of true measurement, no.

24        Q.   Okay.  And it's true that a particular person who has been

25     diagnosed, for instance, with PTSD could have a perfectly normal memory.

Page 6387

 1        A.   That's possible.

 2        Q.   Now there are also -- you would agree that there's studies that

 3     show that some traumatised individuals often have an increase of

 4     information over time, increase of information over time, which could

 5     also explain for some further details given over time, such as rape

 6     victims?

 7        A.   Yes, sometimes there is an increasion of new information that

 8     comes forward.  What have you to be careful about, though, is the

 9     question becomes how accurate is that information, and have you to work

10     very hard to corroborate that.

11        Q.   Right.  And just so we're clear here, you're certainly not

12     suggesting to this Court that persons who've been diagnosed with

13     post-traumatic stress syndrome or severe trauma or have suffered trauma,

14     would not be reliable witnesses in a court of law, and you're not

15     suggesting that, are you?

16        A.   No, I'm not making that categorical claim, that they cannot be

17     used as witnesses.  I do offer the caveat that it's a cautionary tale,

18     that you need to be alert to the possibility that they can be -- it's

19     more difficult to follow them, and you have to listen more carefully to

20     them.

21        Q.   Okay.  That's fair enough.  So I think we all know, and you would

22     agree with me that when it comes to witness credibility issues and

23     reliability, that is strictly for the judges or, in America, the juries.

24        A.   Absolutely.

25        Q.   That's why they're trained to hear cases.

Page 6388

 1        A.   Yes.

 2        Q.   So I want to talk a little bit about inconsistencies because it

 3     actually is interesting, but people can describe events differently,

 4     right, using different words on different occasions, even non-traumatised

 5     people.

 6        A.   Yes.

 7        Q.   And -- so when telling a story differently, it doesn't mean that

 8     it false or inaccurate on any occasion.

 9        A.   No.

10        Q.   And in terms of consistency, doesn't consistency in answers

11     depend on a lot of different factors, such as who's asking the questions,

12     how the questions are asked, the typical setting, et cetera?

13        A.   Those are influencing factors, yes.

14        Q.   And as long as the thread, I think was that the word you used,

15     thread, yesterday?

16        A.   Thread.  Yeah.

17        Q.   As long as the thread is consistent throughout the statement,

18     then that is important, right?

19        A.   Yes.

20        Q.   But the peripheral details, as they're referred to, can be

21     different when different questions are asked.  If a question is asked

22     differently, the peripheral details might change --

23        A.   Yes.

24        Q.   -- colour of eyes, colour of hair -- okay.  In this particular --

25     in this context, we have, as you know, multiple statements from the

Page 6389

 1     witnesses, testimony from one to two different trials, and you have

 2     different people asking the questions, and you also have different

 3     interpreters, so you also have to factor in, don't you, that an

 4     interpreter may interpret something differently.

 5        A.   Yes.

 6        Q.   Okay.  And in fact, we have had debates in this courtroom about

 7     interpretation problems.  Even what we're staying gets misinterpreted on

 8     the record, and there has to be checks and corrections made.  So if it

 9     happens here, it would happen out there when someone is being interviewed

10     at their house, for instance.

11        A.   Yes.

12        Q.   It would also depend a lot on how the statement's being recorded,

13     if someone's taking notes, if someone's writing down verbatim, someone is

14     recording it, or someone is typing it, that would all make a difference

15     in how the statement is written; right?

16        A.   Yes.

17        Q.   And there also is the question about consistency and

18     inconsistency.  Something may not be an inconsistency at all.  It just

19     may be additional information.  In other words, someone doesn't mention

20     at one time that someone is present but mentions it another time, that is

21     not necessarily an inconsistency, is it?

22        A.   No, but it depends on the context in which the new information is

23     being introduced.  I think you do have to evaluate that.

24        Q.   Well, couldn't it also be, for instance, if I'm talking about

25     70 people in a room and I name everybody I can remember, but then the

Page 6390

 1     second time I'm asked by the person, Well, was so and so there?  Would

 2     that jog my memory?  Yes, that person was there.  I didn't say it the

 3     first time because I can't remember 70 names, but I said it the second

 4     time because the person specifically asked me.  So that can account for

 5     changes over time, can't it, different statements?

 6        A.   Yes.

 7        Q.   And that's not an inconsistency, sit?

 8        A.   No.

 9        Q.   Now, you talked about a lot of studies yesterday, just one little

10     thing, you did not include all the studies you mentioned in your report

11     of these three women.  Did you know you didn't do that?

12        A.   You mean in the literature file?

13        Q.   Yes.  Well, in fact, most of them you didn't reference.  When you

14     talked about Kraft and Dember and Reuben [phoen] and all of the rest of

15     them, there was no reference in your report to any of those.  I was quite

16     surprised yesterday when you mention those because they weren't in your

17     report.

18        A.   There's no reference to -- I want to track with you here.

19        Q.   Sure.

20        A.   What's missing?

21        Q.   No reference to the Robert Kraft study or William Dember study,

22     Karen Nelson study -- you went down a litany of studies that you relied

23     upon when writing your report, but we didn't know about those, so ...

24        A.   Well, I mean, they were listed in the folder with the various

25     studies I looked at.  I mean, I looked at those and others.  Some of them

Page 6391

 1     I read but didn't necessarily incorporate into a report.

 2        Q.   With all of these studies that you've read, aren't there a lot of

 3     studies that show, in fact, that memory for the gist of an event is

 4     generally quite good, but it's the fuzzy details, the peripheral details

 5     that might be less clear.

 6        A.   Often that's the case, but it also depends on the way in which

 7     the memory was initially encoded.  If it was encoded under high stress

 8     conditions, such as a traumatic event, then you would anticipate a

 9     different encoding process and a different retrieval process than you

10     might anticipate under normal everyday circumstances.  The anxiety can

11     have its effect.

12        Q.   Now, in terms of accuracy, Dr. Hough, isn't it almost impossible

13     to test someone's memory for accuracy?

14        A.   Well, there are memory tests, obviously, and you can assess

15     various kinds of memory and get aggregate summations regarding people's

16     memory capacity.  In terms of memory accuracy, I'm not sure of a good way

17     to do that, exactly.

18        Q.   Right, and I think it's because -- I mean, for instance, take the

19     Vietnam veteran's example's again because that is one example used.  You

20     can't test their memory because nobody was there.

21        A.   Right.

22        Q.   Right.  Okay.  The same way we can't accurately test the

23     memory -- you can't test the memory of traumatised victims for accuracy

24     because you didn't go through the trauma.  You weren't there.

25        A.   That's true.

Page 6392

 1        Q.   So you're not able to -- no psychologist can offer an opinion

 2     about whether a particular individual is accurate in what they have

 3     reported?

 4        A.   That's correct.  You can comment upon whether there's consistency

 5     across time and so on, but in terms of the accuracy of the recollection,

 6     that's an internal -- that's an internal world that I don't have access

 7     to.

 8        Q.   Now, in terms of eye-witness accuracy, you'd agree with me,

 9     wouldn't you, that most of the studies with regard to eye-witness

10     identification have all been about line-ups or photo spreads or that type

11     of controlled study.

12        A.   That's most of it, yeah.

13        Q.   Right.  And they're usually studies of college students who are

14     called in and have watched a film -- an incident on a film and they're

15     asked to pick out someone from the line-up.

16        A.   Yes.

17        Q.   And do you know of any study where people were asked to recognise

18     someone whom they'd known for years?

19        A.   Not that I'm aware of, no.

20        Q.   Do you know of any research that suggests that people cannot

21     recognise someone that they knew?

22        A.   Other than if you looked at the -- say, the literature on

23     Alzheimer's disease or something like that, where people sometimes forget

24     loved ones, bout other than that, no.

25        Q.   Yeah.  And I did miss one point that I wanted to follow up with

Page 6393

 1     regards to the studies with the college students watching.  Again, those

 2     studies have to do with the ability or the inability of a person to

 3     identify a total stranger whom they saw in this video-clip.  That's

 4     generally most of the studies, right?

 5        A.   Yes.

 6        Q.   Yes, okay, so they are not -- again, my follow-up was they're not

 7     asked in these studies to pick someone out of a line-up whom they knew on

 8     the film?

 9        A.   No, I don't think so.

10        Q.   Do you know of any research that suggests that trauma might

11     interfere with the memory of someone to such a degree that a person could

12     not recognise someone who they'd known for years?

13        A.   I'm not aware of that literature, no.

14        Q.   And you're not aware of any -- excuse me.  Now, I'm just curious,

15     with regard to the three witnesses in this case, did you happen to count

16     up the number of consistencies?

17        A.   I started to with VG-114, but then I decide I think I had enough.

18     I don't remember how many I got.

19        Q.   I think you -- maybe it's mistranslated.  No.  I know you did

20     that with inconsistencies.  That's what you said.

21        A.   Okay.

22        Q.   I'm talking about consistencies.

23        A.   Oh, consistencies, no.

24        Q.   So you don't know what the proportion was of the statements --

25     proportion of inconsistent versus consistent.

Page 6394

 1        A.   No.

 2        Q.   Could it have been 10 per cent inconsistent, 90 per cent

 3     consistent?

 4        A.   Without both counts, I wouldn't have a percentage.

 5        Q.   Would it be important, though, for your opinion, your analysis to

 6     study the consistencies?

 7        A.   That could have been useful.

 8        Q.   Okay.  And also when you were looking at the materials, did you

 9     distinguish between -- you didn't distinguish, I imagine, between any

10     peripheral details and those that are the thread details because you

11     don't really know that much about the case, right?  So you didn't

12     distinguish about what is important and what isn't important?

13        A.   Central versus peripheral, no.

14        Q.   Central versus peripheral.  Okay.  Also in regards to your

15     evaluation and analysis, did you read any of the testimony of our other

16     40 witnesses to see if they corroborated any of the three witnesses?

17        A.   No, I wasn't asked to review an extra 40 cases.

18        Q.   I'm sure you're busy.  Would that have been helpful to see what

19     other witnesses said and then to look at what these women said and put it

20     into context?  Would that be helpful?

21        A.   I suppose.  If you were really going to go that far, it might

22     have been.

23        Q.   What do you mean go that far?

24        A.   Well, that would have been a lot of reading.

25        Q.   Okay.  Right.  But as you said yesterday, I think you started

Page 6395

 1     out --

 2             MR. GROOME:  Just a minute.

 3             Mr. Cepic.

 4             MR. CEPIC:  I apologise for interrupting.  Just the problems with

 5     the speakers, and could they slow down for the interpreters.  Thank you.

 6             MR. GROOME:  Yes.  Please proceed.

 7             MS. SARTORIO:  Yes.  Thank you.  Sorry.

 8        Q.   We have to slow down.  What was my last ... Yeah, okay, did you

 9     read any other testimony -- right, you were busy.  But yesterday -- I

10     think you started out your testimony, there's a lot at stake here, and

11     it's pretty -- this is -- there's a lot at stake.

12        A.   Yes.

13        Q.   Yes.  So in order to do a full and complete and proper analysis,

14     you probably would need to look at some of the other evidence, the

15     corroborating evidence.

16        A.   To do it completely, yes.

17        Q.   Yes, and also to examine the women.

18        A.   Yes.

19        Q.   Yes.  Yourself.  Okay.  Now, when you were asked to do this, who

20     asked you to review these?  Was it Mr. Alarid?

21        A.   Mr. Alarid.

22        Q.   Okay.  And again, did he give you the materials?  Did he say,

23     Here's the transcripts and the statements, and ask you to do something

24     with them?

25        A.   He handed me the binders and said, I'd like you to review the

Page 6396

 1     materials and basically tell me what you think, and does it, in the

 2     vernacular, hang together?

 3        Q.   And did you ask for any other materials in the course of your

 4     reviewing everything?  Did you say -- if a witness -- one of the

 5     witnesses, for instance, referred to another witness, would you have

 6     wanted to read that witness's statements too?

 7        A.   Yes.  I didn't ask for that.

 8        Q.   Okay.  Now, I want to concentrate on VG-63 first, and I apologise

 9     here.  I've mislaid ...

10             MS. SARTORIO:  I apologise, Your Honours.

11        Q.   If you want, we could bring up your report on the screen.  This

12     is VG-63.  It was marked for identification.  Do you have it -- thank

13     you, Mr. Alarid.

14             MR. ALARID:  Sure.  1D22-0788.  And I apologise, I didn't have my

15     microphone on.

16             MS. SARTORIO:

17        Q.   Now, I just want to ask you a couple of questions about, again,

18     going back to inconsistencies.  You made a -- you talked yesterday about

19     her statements about the aggressor soldier carrying the head and the

20     aggressor soldier and then again Milan Lukic.  Again, you don't know

21     whether this person -- how the questions were asked, and you don't know

22     whether on the third occasion or the occasion where she was asked whether

23     someone asked if it was Milan Lukic.  You don't know that, do you?

24        A.   No, I do not.

25        Q.   So it may not be an inconsistency at all.  Is that -- I mean, is

Page 6397

 1     it possible?

 2        A.   It's possible.  It's unresolved.

 3        Q.   Right.  It's unresolved.  Okay.  Now, also, some of your -- what

 4     you consider to be inconsistencies are -- you refer to the witness being

 5     confronted, confronted by Mr. Cepic in particular.  Well, you know that

 6     in a court, for instance, right now, here, I can put anything to you --

 7     well, within reason.

 8        A.   Yes.

 9        Q.   Right.  It doesn't mean it's true.

10        A.   No, that's true.  That's a correct statement, yes.

11        Q.   Right.  So if a lawyer puts a proposition to a witness, it

12     doesn't necessarily mean it's true.

13        A.   I agree with that statement.

14        Q.   Okay.  But you rely on that when you say she's confronted with a

15     fact, and you said she was confronted with the fact she placed

16     Mr. Momir Savic at the Hasan Veletovac school at the time he had been in

17     Slovenia.  That's what Mr. Cepic said.  That's not what the -- you don't

18     know for sure whether that witness was in Slovenia, so you don't know

19     whether that's an inconsistency.

20             JUDGE ROBINSON:  Mr. Cepic.

21             MR. CEPIC:  It is a wrong interpretation, what I said in the

22     transcript, what this expert quoted in his report.  It was related -- my

23     quotation in the transcript was related to the judgement in

24     Mitar Vasiljevic case, not about some other things, and it was clearly

25     quoted in this report as far as I understood.  Thank you very much.

Page 6398

 1             JUDGE ROBINSON:  Make sure you have it correct.

 2             MS. SARTORIO:  Okay.  Well, it was -- well, it's something that

 3     Dr. Hough quoted in his report, so if it's not accurate, then it just

 4     makes -- it's not -- should be taken out of the report or corrected,

 5     Your Honour.  I don't know.  I'm asking about it, and I assume it was

 6     done.  It was ...

 7             MR. CEPIC:  It is really -- sometimes I'm -- Your Honour, with

 8     your leave, sometimes I'm really surprised with the allegations from

 9     opposite side.  I think that the Prosecutor had enough time to check

10     those allegations, to check the transcript, and to check the judgement

11     from Vasiljevic case.  It is quotation from the judgement related to that

12     witness VG-115.  Thank you very much.  I apologise for disturbing.

13             MS. SARTORIO:  Well, all I'm --

14             JUDGE ROBINSON:  Ms. Sartorio, I would suggest that you move on.

15             MS. SARTORIO:  I will, Your Honour.  Okay.

16        Q.   But in drafting your report, though, you have to assume that

17     everything you read is -- you assume it's correct.

18        A.   I assumed in that report, yes, that that statement was correct.

19        Q.   Okay.  Now, with regard to the tattoo issue, you said at one

20     time, are you aware that this witness on two occasions in court twice

21     said that she didn't see tattoos on Mr. Lukic, and she twice said she

22     didn't remember saying that in a statement, so she has said that.  So is

23     it a possibility that the person who was taking the statement just wrote

24     it down there wrong and ...

25        A.   I suppose that's possible.

Page 6399

 1        Q.   Now, on page 2 of your report, and I know you have it in front of

 2     you, you talk about the combination of conditions and overall psychiatric

 3     status with her capacity to provide rational and consistent reports.  Are

 4     you saying that someone that's suffered a traumatic event and maybe

 5     second trauma isn't rational or can't provide rational information?

 6        A.   No, I'm not.  What I'm alluding to is in this particular case of

 7     VG-063, we have a combination of sources of trauma.  One would be the

 8     experiences of the war.  The second would be that which she experiences

 9     in her own home.

10             MS. SARTORIO:  We have to - sorry - strike that, about ...

11        Q.   Could you just avoid talking about any -- well, it's not

12     really -- if we're going to talk about the personal details, we have to

13     go into private session, so you can talk -- we know what we're talking

14     about.

15             JUDGE ROBINSON:  Private session?  No?

16             THE WITNESS:  No.

17             MS. SARTORIO:  No.  I think we're okay.

18             THE WITNESS:  Okay.  I guess the point I would make would be that

19     we have what would be considered a compounding of traumatogenic

20     conditions from two different sources.  And again, I cannot claim that

21     even with the compounding that makes that, therefore, she can't provide

22     testimony or rational testimony, but it does mean that the loading, the

23     potential for that increases, and that I do think that we see at times a

24     slippage in testimony, whether it's due to the convergence of these two

25     types of trauma or some other source, I don't know, but we see that.  So

Page 6400

 1     I note the trauma and the compounding trauma only as a factor to be

 2     considered.

 3             MS. SARTORIO:

 4        Q.   And you mentioned, also, in this report and in others, you talk

 5     about this -- the fact that the witnesses are under psychiatric care.

 6     Now, you would agree with me that -- you know, you're in the business, so

 7     someone being under psychiatric care doesn't make them any less accurate

 8     or any less reliable, does it?

 9        A.   No.  Not necessarily, not at all.

10        Q.   And also taking medication for some disorders isn't going to

11     affect them in any way, memory or accuracy or ...

12        A.   It depends on the case, but by and large you can't make a general

13     claim that because you're on medications or you're under care, that you

14     are impaired, no.

15        Q.   And in fact, you know, I think you'd agree with me that there are

16     a lot of lawyers and doctors and other professionals who take medication

17     for, say, depression, Prozac, on a daily basis, and they're carrying out

18     their activities just fine.

19        A.   Yes.

20        Q.   And -- okay.  Now I can move on to VG-114.

21             MS. SARTORIO:  We can put that report up on the screen.

22        Q.   Sir, this is the woman Zehra who we contend is the sole survivor

23     of a fire.  Do you have it?  Sorry.

24             MS. SARTORIO:  It was Y027-3870.

25        Q.   And I guess we'll start with the first page, the bottom of the

Page 6401

 1     first page.  The bottom.  Oh, is that the bottom?  Okay, the top of the

 2     second page, then.  It's the first paragraph of your report.  You say

 3     that you found no evidence from any of the materials that you've reviewed

 4     that "a thorough forensic analysis was completed to determine the scope

 5     of the fire, the kinds of accelerants that may have been used, or the

 6     human remains that would have been left by such a fire."

 7             You say that; right?

 8        A.   I had said that.

 9        Q.   Okay.  Now, why is that important an evaluation of a witness's

10     testimony?  In the context of this, why is that important?

11        A.   Well, I would refer forward, I guess, to in my mind the

12     unresolved question in terms of the statements, the claims, gas cylinder

13     versus house fire.  So I do think that helping resolving that question by

14     forensic analysis at the site would be useful.  And in many of the cases

15     I work, I also review the forensic evidence that comes in regarding the

16     crime scene itself.

17        Q.   Okay.  Well, you know these crimes occurred 16, 17 years ago.

18        A.   Yes.

19        Q.   But you say "I find no evidence from any of the materials I have

20     reviewed ..."  Well, the only thing you were given to review were their

21     statements, so why would anything about the forensic materials be in

22     these witness statements and the transcripts?

23        A.   Well, I reviewed everything the attorneys gave me, and there was

24     nothing of that nature in there.

25        Q.   It would have been helpful for you to have said, since I haven't

Page 6402

 1     reviewed anything else.  You know, because you don't know -- because you

 2     haven't reviewed the whole thing, you don't know what forensic analysis

 3     was or was not done.  So you can't make an assumption here that there was

 4     one.

 5             JUDGE ROBINSON:  Yes, Mr. Alarid.

 6             MR. ALARID:  For clarification, the witness asked me for police

 7     reports, and we were not able to give him something that would have

 8     complied with that in the true sense of the word that might have included

 9     such information, so we gave him what we had.

10             JUDGE ROBINSON:  Yes.  Please move on.

11             MS. SARTORIO:  Yes.

12        Q.   I understand that, but again, the report should be clear that you

13     weren't provided with any police reports to draw any type of conclusion

14     about what or wasn't done.  Isn't that fair to say, Doctor?

15        A.   I think it's probably fair to say.

16        Q.   Now, I want to talk to you about Zehra's -- what happened to her

17     in court.  Are you aware that the reason she left court was because

18     unannounced, without any notice, without any preparation as she's on the

19     stand, she was shown photographs of herself all burnt that she hadn't

20     seen for years.

21        A.   Pardon me.  Can you tell me, was this the first time or the

22     second time?

23        Q.   The first time.  That's why she had to leave and take a break.

24     Are you aware of that?

25        A.   No, I wasn't aware --

Page 6403

 1             MR. ALARID:  Your Honour, I would object.  It assumes facts not

 2     in evidence, and the witness left the stand as we were going through

 3     photographs, and I don't think we were ever provided any particular

 4     information with regards to the situation, so I would say that it's an

 5     improper hypothetical and assumes facts not in evidence before --

 6             JUDGE ROBINSON:  The witness did leave the courtroom.

 7             MR. ALARID:  I know that.

 8             JUDGE ROBINSON:  [Overlapping speakers]

 9             MR. ALARID:  I know that, but I mean -- we were never -- one, I'm

10     curious -- well, if the Prosecution was not able to have this particular

11     contact and we weren't given any particular notice, I'm wondering how

12     this particular theory as to why she left the stand is presented to the

13     witness.

14             MR. GROOME:  Your Honour.

15             JUDGE ROBINSON:  Yes.

16             MR. GROOME:  I mean, no one had contact with Zehra Turjacanin.  I

17     the it was very clear what happened.  Mr. Cepic called up the video of

18     her first interview, and when it was put on the screen in front of her,

19     an image she had not seen for 17 years, an image showing her terribly

20     injured, she just immediately said, Please, I need to leave the

21     courtroom.  And she was escorted out of the courtroom, so it doesn't take

22     any interview.  I think it's a reasonable deduction we can all make.  We

23     were all here.  We witnessed that.

24             JUDGE ROBINSON:  So the question is what --

25             MS. SARTORIO:  The question is basically would that have --

Page 6404

 1             JUDGE ROBINSON:  If it is put that way --

 2             MS. SARTORIO:  Hypothetical.

 3             JUDGE ROBINSON:  Yes.  If it is put the way that Mr. Groome just

 4     put it.

 5             MS. SARTORIO:

 6        Q.   If that were the case, would that be important for you to know

 7     that?

 8        A.   Well, yes.  Let me say several things.  First of all, I didn't

 9     know what the stimuli that she was reacting to was until just now; but

10     second, yes, it would be important because it would suggest to me as a

11     clinician that she is responding to -- she's being overstimulated by

12     something.  We call it a trigger.  She has been triggered by having seen

13     these pictures that she has not seen for these many years that reminds

14     her of the trauma.  That trigger kind of reaction, trigger phenomena is

15     often what we see in the traumatic conditions, so it would have been

16     clinically useful, yeah.

17        Q.   But it could also happen to a normal person who sees something

18     that horrifying.  Have you seen the pictures of her?

19        A.   I think I saw a video-clip, but -- I think I saw that, yes.

20        Q.   As I said, a normal person could also have this -- not a normal

21     person.  Someone not suffering from a disorder could also have this

22     reaction.

23        A.   Especially if it's a picture of themselves in that condition.

24     That's possible.

25             MR. ALARID:  Your Honour, I would like to clarify that on

Page 6405

 1     September 25th; 2008, the witness left the stand during my

 2     cross-examination and not during Mr. Cepic's presentation.  I believe

 3     Mr. Cepic had the opportunity to cross-examine during the return of

 4     Ms. Turjacanin, which happened -- yeah, sometime -- considerable -- and

 5     on November 4th is when she was shown this, and for what context that is

 6     in, that's not the reason why she left and did not return until November.

 7             JUDGE ROBINSON:  Thank you for the clarification.  Let's move on.

 8             MS. SARTORIO:

 9        Q.   Okay.  And also in your report of VG-14, yes, you make note of

10     the fact that she asked -- she told the officer -- she told them about

11     the burns being the result of another accident.  Now, you know having

12     been in the Balkans and seeing the war and what it's done to people that

13     someone who is a Bosnian Muslim civilian woman going to the Serb police

14     and telling them that something had happened and done by Serbs, probably

15     wouldn't have been a smart thing to do, would it, for her?

16        A.   You mean to tell them about a fire?  Is that what you're --

17        Q.   Well, telling them that Milan and Sredoje Lukic set fire to the

18     house.

19        A.   Well, it may not have been.  I don't know enough about the

20     circumstances to say that with certainty, but, you know, that's possible

21     that that could have been in her appraisal, in her analysis of what to

22     say.  That's possible.

23        Q.   So all of these different things that I'm pointing now --

24             MR. CEPIC:  Excuse me, Judge.

25             JUDGE ROBINSON:  Yes, Mr. Cepic.

Page 6406

 1             MR. CEPIC:  This witness never said that my client set the fire

 2     in that house, so this is -- I don't see any foundation for those kind of

 3     allegations.

 4             MS. SARTORIO:  I'm asking him about the report to the police

 5     department, not -- it's a hypothetical.

 6             MR. CEPIC:  It is unacceptable, completely unacceptable from my

 7     point of view.

 8             MS. SARTORIO:  Well, sir, other --

 9             JUDGE ROBINSON:  Ms. --

10             MS. SARTORIO:  Other witnesses --

11             JUDGE ROBINSON:  If you're going to rely on the evidence, you

12     have to be accurate.

13             MS. SARTORIO:  Yes, Your Honour.

14             MR. CEPIC:  There is no such report.  Thank you very much.

15             MS. SARTORIO:  There isn't, but other witnesses, particularly

16     VG-119 has said that this witness told her that, so there is evidence,

17     and I don't think we should be arguing about the evidence in front of the

18     witness, Your Honour.

19             MR. CEPIC:  And also -- I apologise.  May I -- Your Honour, may

20     I?

21             JUDGE ROBINSON:  Ms. Sartorio, how much longer will you be?

22             MS. SARTORIO:  I'll move on very quickly, Your Honour.

23             MR. CEPIC:  I apologise for disturbing, and just for the record,

24     this witness never said this, she went to the police and report.  Thank

25     you very much, and I apologise for this.

Page 6407

 1             MS. SARTORIO:

 2        Q.   Just a few more questions about this witness.  It's important,

 3     isn't it, Doctor, when you write a report that you do provide citations

 4     for everything you cite to, and I know you tried to do that in this

 5     report, but there are a lot of sentences that don't have any citations.

 6        A.   Yeah, that's true.  I mean, I cited the ones that I thought were

 7     important, but I suppose an argument can be made that every sentence

 8     should be cited.

 9        Q.   Right.  Because otherwise we don't -- when you say -- you talk

10     about in the third paragraph on page 4 - page 4, please, thank you - the

11     last paragraph, when you talk about on cross-examination, you say, for

12     example, in earlier versions of her narrative she said her brother and

13     Mr. Lukic were close friends, now she does not.  You don't cite anything

14     there, so can you explain why each one of your facts is not cited?

15        A.   No.

16        Q.   I'll move on.

17             MS. SARTORIO:  May we now have the letter regarding VG-115, which

18     is Y027-3879.

19        Q.   Now, with regard to this, you say:  "Turning to the documents, it

20     becomes evident that witness VG-115 has serious emotional problems."  You

21     conclude that.

22        A.   I'm sorry.  Can you show me where you are again, please.

23        Q.   It's the first paragraph of the report:  "I begin this analysis

24     ..." and it's toward the end.  Turning to the documents, it becomes

25     evident that VG has serious emotional problems.  Can you tell that

Page 6408

 1     somebody has serious emotional problems just by looking at a document, or

 2     should you be doing that?

 3        A.   Well, there is document analysis, and you -- I mean, I haven't

 4     provided a technical diagnosis, but I have alluded to a number of ways in

 5     which I infer from the material that there are some problems here, so I

 6     think that's a fair -- it's a summary statement and later on in the

 7     report I go on to flesh that out.

 8        Q.   Okay.  But you also rely with regard to this witness on the fact

 9     that she says, and you quote her, I was out of my mind, that if it wasn't

10     for my daughter, I would have killed myself.  Now, don't you consider

11     that to be actually a rational thought, that she didn't consider it

12     because of her daughter?

13        A.   That part is -- the statement as a whole is both rational and

14     irrational.  The irrational part is -- well, I don't know if it's

15     irrational, but she's telling us how desperate she had become, that she

16     had been pushed to the brink of contemplating taking her own life.  The

17     rational part is that she can step back and observe and recognise that

18     she does have something to live for:  Her daughter.  That becomes a

19     protective factor, a buffer against action.

20        Q.   It could also be interpreted that she's responsible, that she's

21     living up to her responsibilities as a mother.

22        A.   Well, that's true too.

23        Q.   That has my point, though.  You can look at any number of these

24     factors that you've cited to, and there is more than one way of looking

25     at the conclusions that you've drawn and the citations.  For instance,

Page 6409

 1     you mentioned further on on page 2, you mentioned about the

 2     transportation, the ride home.  When confronted about accepting a ride

 3     from Mr. Slobodan Roncevic from her place of employment to her home, her

 4     answer confuses the concept of accepting a ride home for transportation,

 5     with the sexual connotation of being taken home.  But, again, you don't

 6     know in a different culture when someone says, I'm going to take you

 7     home, that's what they mean.  We can't rule that out.

 8        A.   Okay.  But that was my read on it, but I agree with your point.

 9        Q.   Right.  Okay.  Thanks.

10             Now, another point which is further up when you talk about

11     Mitar Vasiljevic, she responded when asked where he was to locate a mark

12     on the scene, she responded, Do you think he just stood in a single spot?

13     And for some reason you said her thinking could not flexibly allow for

14     representation on a map to represent more than him.  Well, actually, I

15     thought -- can't you read that as she's being actually very astute?

16     She's telling the person, the Prosecutor, or whoever's asking her, he

17     didn't just stand in one spot, so I can't just put one spot.  She's

18     actually doing a better job of answering the question than was asked of

19     her.

20        A.   You could, but I think the general task was to -- that the X on

21     the -- the indicator, the spot on the map would be a generalized

22     representation of where he was.  And to try to -- for her to specify that

23     he moved around a lot is -- it's a bit of a concretization.  It's not

24     serious, but ...

25        Q.   Okay.  And with regard to the Vasiljevic judgement, which has

Page 6410

 1     been referred to, alluded to in your testimony yesterday, you didn't read

 2     the judgement, did you?

 3        A.   No.  I was referencing the commentary from Mr. Cepic.

 4        Q.   Cepic.  I know.  It's hard to pronounce.  Have you to be here a

 5     while to --

 6        A.   I'm sorry, sir.

 7        Q.   So you we are referencing again his comment about it.  You don't

 8     know if that's true.

 9        A.   That's -- no, you're right.  I haven't read the judgement, but I

10     have no reason to believe that an officer of the court in open court

11     would make a false claim deliberately, either.

12        Q.   But there are many reasons why a witness may not be found

13     credible in another case and found credible in another case; isn't that

14     true?  There's different circumstances, different witnesses in the cases.

15     They're two separate cases, so you can't carry one into the other based

16     on a question by Defence counsel.

17             MR. ALARID:  Objection, Your Honour.  It violates the principles

18     of res judicata and calls for the witness to make a legal conclusion.

19             JUDGE ROBINSON:  Yes.  Not res judicata, but move on.  I don't

20     think there is much point in the question.

21             MR. ALARID:  Law of the case, Your Honour.  A pre-adjudicated

22     fact.

23             MS. SARTORIO:  Your Honour, it's not --

24        Q.   Sir, you don't know the circumstances of that case, do you?

25        A.   No, I do not.

Page 6411

 1        Q.   And you don't know exactly what the judges said in the judgement?

 2        A.   No, that's correct.

 3        Q.   But you did rely on that.  You did put that in your report

 4     without really knowing the full stance circumstances; right?

 5        A.   That's correct.

 6             MS. SARTORIO:  May I have one moment, Your Honour, and I may be

 7     finished.

 8             I have no further questions of Dr. Hough.

 9             Thank you, Dr. Hough, for answering my questions.

10             JUDGE ROBINSON:  Thank you.  Any re-examination, Mr. Alarid?

11             MR. ALARID:  Yes, Your Honour.

12             JUDGE ROBINSON:  How long will you be?  Is there another witness?

13             MR. ALARID:  Not too long, and we are prepared Ms. O'Leary and

14     Mr. Jenkins are en route only because they are offline, or Ms. O'Leary is

15     offline, rather.  So actually I expected this to go to full session, but

16     it's not, so we would be ready at least to start Mr. Jenkins, I'm

17     assuming.  If we could -- I'll probably know either if she pops up on the

18     screen, which sometimes happens, and/or at the break might be a good

19     opportunity, and Mr. Ivetic can go out and check right now.

20             JUDGE ROBINSON:  Yes, Mr. Ivetic, please go and check and bring

21     her in.

22             MR. ALARID:  And what's this document, Your Honour, the power of

23     attorney we're going to have to execute before we start?

24             JUDGE ROBINSON:  It's a standard document with the Registry.

25     They'll tell you about.

Page 6412

 1             MR. ALARID:  Okay, thank you.  I just want to facilitate that.

 2     Okay.

 3                           Re-examination by Mr. Alarid:

 4        Q.   Now, Doctor, let's start first with going back through, and we'll

 5     just do it in the order of the cross-examination.  You know, obviously --

 6     well, you indicated in your report that some of the sources you looked at

 7     were newspaper articles and general news and/or reporting, as well as you

 8     probably looked at the web site here, case information sheet, the

 9     indictment as some due diligence before you got involved?

10        A.   Yes, I did.

11        Q.   Why would you be looking for psychopathy when looking at this

12     kind of case?  You said that you were half-surprised or whatnot as to

13     what you were looking for.

14        A.   Well, I would be looking for psychopathy because in a case where

15     someone had actually engaged in the actions for which this defendant has

16     been accused, that this is the kind of behavior that one would fully

17     anticipate from somebody who is of a psychopathic nature, and by that I

18     mean specifically is able to kill without remorse, lacks conscience, and

19     doesn't see the value in human life.

20        Q.   Now, you indicated that some issues might start showing up as a

21     juvenile, and you used the reference point of a teenager.  What kind of

22     things would you expect, and why is that important?

23        A.   Typically, the budding psychopath would begin to manifest in

24     adolescence, typically manifested by, say, getting in trouble with the

25     law, engaging in miscreant behaviors that bring that child to the

Page 6413

 1     attention of the law, so juvenile delinquency.  Often you will see school

 2     problems or school failure, moving into a deviant lifestyle characterized

 3     by heavy use of drugs or alcohol.

 4             JUDGE ROBINSON:  Yes.  Thank you.

 5             MR. ALARID:

 6        Q.   Thank you.  And also you considered you were questioned a little

 7     bit about the basic overall intelligence, average, below average,

 8     whatnot.  Why is that important for your analysis?

 9        A.   Because generally speaking, the higher the intelligence, the more

10     capable that individual really is of functioning in the world.  Someone

11     of very low intelligence would not be expected to function as well or as

12     adaptively as someone with very high intelligence.

13        Q.   Now, I'm going to pose this as a hypothetical, but I would

14     proffer that some evidence was given in this case by a witness or

15     witnesses actually that knew him in the general area of his high school

16     years.  And one witness, in fact the witness that accuses him of trying

17     to shoot him at the Drina River says that Milan Lukic did not fight or

18     get in fights and hadn't been aggressive as far as he knew.  How does

19     that play into your -- how would that fact -- if it were shown from a

20     direct witness, how would that factor in?  Would that be a collateral

21     source, if you will?

22             MS. SARTORIO:  Your Honour, this is outside the scope of

23     cross-examination.

24             JUDGE ROBINSON:  Yes.  Next question.

25             MR. ALARID:  Is it outside the scope, Your Honour?  I mean --

Page 6414

 1             JUDGE ROBINSON:  Yes.  I rule it's outside.  It doesn't arise.

 2     Don't redo the evidence that you led in chief.

 3             MR. ALARID:

 4        Q.   Would you expect to find someone of this -- of emerging

 5     psychopathic tendencies to have violent or aggressive behavior early on?

 6        A.   Yes, you would.

 7        Q.   Now, VG --

 8             JUDGE ROBINSON:  We've been through that already.  We've been

 9     through that already.  Let's move on and conclude this gentleman's

10     evidence.

11             MR. ALARID:

12        Q.   I can't remember if I gave you VG-63's testimony, but if I were

13     to proffer to you that she said she knew him in school and that he was

14     always trying to be the centre of attention -- yes?

15             MS. SARTORIO:  No.  Sorry.

16             MR. ALARID:

17        Q.   That she was always try to be the centre of attention but he need

18     to be helped in school, would that be a collateral source for purposes of

19     your evaluation?

20        A.   I think it would in terms of functioning in an educational

21     environment.

22        Q.   Now, you were cross-examined on lack of collateral sources.  In

23     an ideal set of circumstances, would you would have to complete your

24     evaluation in so few hours?

25        A.   Can you say that again for me, please.

Page 6415

 1        Q.   Under ideal situations -- I mean, in this situation there were

 2     timetables and obviously access, you know, problems considering where

 3     you're at and where him and his family are at.  But under normal

 4     circumstances, would you take much more time to do those collateral

 5     sources and follow-up?

 6        A.   Yes, I would.  The logistics here are just so complicated.

 7        Q.   Now, Judge David posed some questions to you about Binswanger,

 8     and I'd like you to explain to the Court the circumstances where the --

 9     someone would be governed more by the societal pushes or the authority

10     that may be pushing, and I'd like you to explain in a very brief nutshell

11     for the Court the Milgram studies.

12        A.   Okay.  I have referenced the Milgram studies as representative

13     or, rather, as a paradigm, an explanatory concept to try to explain why

14     it would be that many individuals under certain environmental

15     circumstances engage in behaviors for which they would not otherwise have

16     engaged had they not been in that circumstance.  And Milgram is one of

17     the paradigmatic lines of study that approach that problem.  He engaged

18     in a series of experiments at Yale University, over 20 variations,

19     looking at the problem of obedience to authority.  Milgram had been very

20     concerned about how could it be from World War II that so many people had

21     seemingly followed blindly.

22             In a nutshell, what he's able to demonstrate in his study is that

23     human beings do have a powerful propensity to obey authority, and he

24     showed --

25             JUDGE ROBINSON:  Thank you.  Thank you.

Page 6416

 1             Your follow-up question.

 2             MR. ALARID:  Yes, Your Honour.  I think it's a powerful analogy

 3     to briefly go through the circumstances --

 4             JUDGE ROBINSON:  I don't want to hear anymore.

 5             JUDGE VAN DEN WYNGAERT:  I think we all know about the Milgram

 6     experiments.  It's very common knowledge to professionals like you, but

 7     you're not talking to a jury, Mr. Alarid.

 8             MR. ALARID:  That's fair enough.  To be honest, I hadn't heard of

 9     Milgram until Dr. Hough told me about it, and so I wouldn't presume that

10     you would have exposure, although I would presume because you're here, of

11     course, I'm sure the defence has been raised before.

12        Q.   Now, there was some concern posed by the Prosecution that all the

13     information is coming from him.  But how do you take that into account --

14     I mean, I'm sure you have to consider that in a forensic evaluation

15     regardless of the access to collateral sources, and tell us how you

16     balance that.

17        A.   Well, as I said, this is a case where I did have to rely so far

18     primarily upon the self-report from the man examined himself.  In an

19     ideal situation, of course, I would have tried to have gathered as much

20     collateral information as possible.  But short of that looking at his own

21     self-report, I look at internal consistency.  I look for the way in which

22     he tells his narrative.  I look for the way in which he's related to me

23     in terms of the patient-examining relationship.  I look for

24     contradictions, gaping omissions.  I look for times when he becomes

25     emotionally pressured or not.  I look for a lot of clinical indicators

Page 6417

 1     that are ongoing and constantly being monitored in the process of the

 2     evaluation.  So there is a clinical diagnostic process unfolding at every

 3     moment.

 4        Q.   And what do you factor in as your inability to have access to the

 5     subject, and what normally do you do in terms of revisiting this with the

 6     accused?

 7        A.   Well, again, I try to get as much extra collateral as I can when

 8     I can get it, but beyond that I would go back and try to revisit with the

 9     accused and go over those particular areas that remain unresolved or

10     which I have specific concerns about.  And I would always as much as I

11     can try to get into the details themselves about the allegations.

12        Q.   Now, there was some reference to -- and brought up -- it was

13     admitted as P -- I believe it was 313.

14             MR. ALARID:  Could we have that, page 11.

15        Q.   And just as a lead-up while they're putting it on the screen,

16     there was a discussion between you and the Prosecutor regarding his role

17     in the military and the command structure.  But specifically, he referred

18     to a commander, Vinko Pandurevic, simply as in the chain of command above

19     him.  How -- did you assess him as being in a paramilitary or in the

20     military based on that reported information?

21        A.   Well, I mean, he told me a number of times in many ways that he

22     was in the command structure of the military, but that particular name,

23     General Pandurevic, in my understanding would clearly implicate him as

24     being in the chain of command, and he denies having ever been outside

25     that chain.

Page 6418

 1             MR. ALARID:  A moment, Your Honour.  I'm just reviewing my notes.

 2     I don't have much.

 3        Q.   What other factors -- with regards to -- let's move on to the

 4     witnesses, please.  Talking generally with regards to the women witnesses

 5     that were referenced in your letter reports, the Prosecution brought up

 6     certain issues about these -- or actually, I think you brought it up,

 7     that statement-taking procedures, the differences between them can

 8     account for some of the inconsistencies, yet can there be a complication

 9     from the test-taking procedures that would also affect the reliability of

10     those statements, or do you have a feeling on that?

11        A.   I feel like you're asking me several questions here.

12        Q.   I probably am.  How important is consistency in the

13     statement-taking procedures?

14        A.   Consistency in that methodology is important, I would say very

15     important.  Ideally, the statements would be gathered by the same

16     individual across time.  Then you would have a control on that

17     consistency question.

18        Q.   Now, statistically speaking or within your experience, does

19     memory become clearer over time?

20        A.   The general consensus --

21             MS. SARTORIO:  Objection, Your Honour.  This was all covered in

22     direct examination.

23             JUDGE ROBINSON:  I agree.  You're just rehashing.

24             MR. ALARID:  Your Honour, I'm trying to cut it way down, but

25     these were brought up in cross-examination, so I at least believe this is

Page 6419

 1     proper subject matter.  If the Court feels I've adequately covered the

 2     issues on direct, I can move on.

 3             JUDGE ROBINSON:  Yes, move on.

 4             MR. ALARID:  Your Honour, I will pass the witness.  And simply as

 5     a matter of housekeeping, I would introduce the exhibits into evidence

 6     for the weight to be assessed by the Court, but I think the relevance and

 7     the expertise have been established, and I would like to list them in

 8     individually.  I believe the CV has already been admitted, 1D22-0719.  I

 9     would tender the evaluation of Milan Lukic, 1D22-0735.  I would tender

10     the analysis of Witness VG-115 as 1D22-0775.  I would tender the analysis

11     of VG-114, which is 1D22-0779.  And I would tender the appendix to said

12     analysis as 1D22-0784.  And I would tender the analysis of Witness VG-63,

13     1D22-0788.  I would tender those into evidence.

14             MS. SARTORIO:  Your Honour, we would have something -- we would

15     like to speak to that but not in front of the witness.  May the witness

16     be excused?

17             JUDGE ROBINSON:  You want to speak to what?  The admission of

18     these documents?

19             MS. SARTORIO:  Yes, Your Honour.

20             JUDGE ROBINSON:  Well, why should the witness be excused?  He has

21     completed his testimony.

22             MS. SARTORIO:  Well, Your Honour, it's our --

23             JUDGE ROBINSON:  As a matter of fact -- you have finished your

24     re-examination?

25             MR. ALARID:  Yes, sir, we have.

Page 6420

 1             JUDGE ROBINSON:  I see.  We can do this.

 2             Witness, that concludes your evidence.  I thank you for giving it

 3     and particularly for the frank manner in which you have given it.  You

 4     may now leave.

 5             THE WITNESS:  Thank you, sir.

 6             MR. ALARID:  And, Your Honour, I think it would be appropriate

 7     that if you consider the exhibits, they should be under seal.

 8                           [The witness withdrew]

 9             JUDGE ROBINSON:  Yes.

10             MS. SARTORIO:  Your Honour, it's the Prosecution's position that

11     these -- the report and the three letters should not be admitted.

12     There's really hardly any indicia of reliability whatsoever to these

13     documents.  I mean, the doctor is a professional, and he did what he

14     could, but all we have is a self-report of Milan Lukic.  It's

15     Milan Lukic's statement to the Court without having to take the stand.

16     That's all it is, and he admitted that, and he admitted the short-comings

17     in that report, so it really cannot have no value.  And it shouldn't be

18     admitted and considered as evidence in this case.  And with regard to the

19     witnesses, Your Honour, he admitted the short-comings there.  He did not

20     see these women.  He doesn't know.  And all he can say is, you know,

21     people with trauma may have difficulty recording things.  And I think

22     that, again, these should not be admitted in evidence.  Thank you.

23             JUDGE ROBINSON:  I disagree with you strongly.  It only goes to

24     weight.  I'll consult my colleagues.

25                           [Trial Chamber confers]

Page 6421

 1             JUDGE ROBINSON:  We admit the report by majority, Judge Van Den

 2     Wyngaert dissenting.

 3             THE REGISTRAR:  Your Honours, 1D22-0375 will become

 4     Exhibit 1D203.  1D22-0775 will become Exhibit 1D204.  1D22-0779 will

 5     become Exhibit 1D205.  1D22-0784 will become Exhibit 1D206.  And

 6     1D22-0788 will become Exhibit 1D207.  All are placed under seal.  Thank

 7     you.

 8                           [Trial Chamber and legal officer confer]

 9             JUDGE ROBINSON:  Mr. Ivetic.  Mr. Ivetic.  It appears that a

10     question has been raised about the propriety of Ms. O'Leary doing the

11     examination.  I am told that in the Milutinovic case, the person involved

12     was in fact assigned to the Milutinovic case.  Is that so?

13             MR. IVETIC:  That is correct.  In both instances, they were

14     assigned to the case as Ms. O'Leary is so assigned on our case, I

15     believe.  We've never --

16             MR. ALARID:  As far as the Registry was concerned, Your Honour,

17     we never made a formal request for her to be removed.  We picked up our

18     new case manager, of course, because she wasn't able to take on the

19     lion's share of the duties, but in a ghost-writing perspective or at

20     least some help in assisting us to show us where things are going, she

21     helps us all the time, and she's been a wonderful asset.  So I think for

22     practical purposes she's part of our family on this team, and we consider

23     her as such.

24             JUDGE ROBINSON:  I understand that to be an obstacle, that she's

25     not assigned to the case.  It distinguishes it from Milutinovic.

Page 6422

 1             MR. ALARID:  Well, Your Honour, my position was there would be

 2     nothing from a rules perspective, I would hope, that would prevent a

 3     licensed attorney from taking a particular witness if -- you know, I

 4     think it's a good opportunity, but I wasn't aware there would be any

 5     actual impediment within the rules that was so specific.  I mean, we

 6     could take the break and try to get in touch with Ms. Osure.

 7                           [Trial Chamber confers]

 8             JUDGE ROBINSON:  We'll take the break now and see whether it can

 9     be ironed out.  I'm not certain whether that obstacle can be gotten over,

10     but we'll see.

11             MR. ALARID:  Thank you.  I appreciate it.

12             JUDGE ROBINSON:  I'm not given to these -- interpreting rules in

13     these rigid ways myself, but if they're there, then we may have to follow

14     them.

15             MR. ALARID:  Okay.

16                           --- Recess taken at 5.38 p.m.

17                           --- On resuming at 6.13 p.m.

18             JUDGE ROBINSON:  Mr. Alarid, let me speak first.  I say,

19     Mr. Alarid, I'm sorry that I have to disappoint Ms. O'Leary.  OLAD has

20     taken a point that she has not been assigned to this case.  That's

21     different from the Milutinovic case, and it would not be proper for her

22     to appear as counsel.

23             MR. ALARID:  Your Honour, over the break I resolved the matter

24     and spoke personally with (redacted)

25   (redacted)

Page 6423

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4     the solution was found is to re-classify Ms. O'Leary as a pro bono legal

 5     assistant to signed.  No new confidentiality materials need to be signed

 6     because they are already in the possession of OLAD, and she was simply

 7     going to get confirmation that Mr. Djordjevic of the Djordjevic Defence

 8     did not object.  And she has a voice mail on her mailbox, and I have

 9     informed her of that from Mr. Djordjevic that there's no problem bauds

10     Ms. O'Leary had of course had obtained prior approval from her lead

11     counsel on that case to take the time off to take this witness.  So from

12     that stand point, I consider the matter resolved from the Registry side

13     of things.

14             JUDGE ROBINSON:  Well, I congratulate you.

15             MR. ALARID:  I mean, but of course -- you're right.  Making no

16     assumptions, Your Honour, as to the issues that the Court make take with

17     that.

18                           [Trial Chamber and legal officer confer]

19             JUDGE ROBINSON:  Well, Mr. Alarid, you seem to have resolved the

20     situation, and I think you are to be complimented.  We welcome

21     Ms. O'Leary to the trial, and before the witness is called, Ms. Marcus.

22             MS. MARCUS:  Thank you, Your Honours.  Good afternoon.  The

23     Defence has provided us with a list of exhibits they intend to use

24     through Mr. Jenkins, and on the list is something listed as a statement

25     of Uscumlic, and then it says from 65 ter.  Now, a very careful look at

Page 6424

 1     the 65 ter list does not reveal any statement from Zoran Uscumlic.

 2             MR. IVETIC:  I can clarify that, maybe.  There's a similar

 3     name -- we should probably by in private session for this, Your Honour.

 4             JUDGE ROBINSON:  Yes, private session.

 5                           [Private session]

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20                           [Open session]

21             THE REGISTRAR:  We're in open session, Your Honours.

22             MR. GROOME:  Your Honour, while wire waiting for the witness to

23     come in, Mr. Alarid made mention that there might be two of the

24     subpoenaed witnesses appearing next week.  The Prosecution would

25     appreciate knowing which two so we can conduct our preparations over the

Page 6425

 1     weekend.

 2             MR. IVETIC:  We have sent an e-mail to Mr. Stevan Cole of the

 3     Office of the Prosecutor listing the potential witnesses for next week.

 4     The first two on that list are the subpoena witnesses for whom we have

 5     received verification that they've been served.

 6             MR. GROOME:  Thank you.

 7                           [The witness entered court]

 8             JUDGE ROBINSON:  Let the witness make the declaration.

 9             THE WITNESS:  My name is Cliff Jenkins, Your Honour, and I

10     solemnly declare that I will speak the truth, the whole truth and nothing

11     but the truth.

12             JUDGE ROBINSON:  You may sit, and you may begin, Ms. O'Leary.

13             MS. O'LEARY:  Thank you, Your Honour.

14                           WITNESS:  CLIFFORD JENKINS

15                           Examination by Ms. O'Leary:

16        Q.   Good evening.

17        A.   Good evening.

18        Q.   As you know, my name is Marie O'Leary, and I'm an attorney

19     appearing on behalf of Milan Lukic.  With me today is lead counsel for

20     Mr. Milan Lukic, Mr. Jason Alarid, and co-counsel, Mr. Dragan Ivetic.

21     Before we begin, I would like to remind you that because we are both

22     seeking the same language, we should mind a pause between question and

23     answer to make sure that there is enough time for translation.  At the

24     same time, be sure to speak slowly and clearly so that everything can be

25     picked up for the record.

Page 6426

 1        A.   Yes, counsellor.

 2        Q.   Could you please state your name for the record and spell.

 3        A.   My name is Cliff Jenkins, C-l-i-f-f, J-e-n-k-i-n-s.

 4        Q.   And where do you currently reside?

 5        A.   I live in Albuquerque, New Mexico.  Would you like me to spell

 6     that for you?

 7        Q.   Please.

 8        A.   It's A-l-b-u-q-u-e-r-q-u-e.

 9        Q.   And where were you born?

10        A.   In Albuquerque.

11        Q.   And when were you are born?

12        A.   July 4th, 1950.

13        Q.   And are you married?

14        A.   I am.

15        Q.   And do you have any children?

16        A.   I do.  I have two biological children.  My family's a product of

17     a blended family, so I have two biological children, three daughters that

18     were adopted.  I have a step-daughter and a step-son.

19        Q.   Thank you.  And can you give us a brief history of your

20     education.

21        A.   I am a product of public schools in the city of Albuquerque;

22     graduated high school in 1968; enlisted in the Air Force in 1969 and the

23     International Guard.  When I returned from basic training, I then

24     enrolled at the University of Albuquerque, completed three years with

25     University of Albuquerque, and because of my job requirements, at that

Page 6427

 1     point was unable to finish my education at that point in time, and

 2     periodically over the years, went back, took classes, but never completed

 3     my formal degree.

 4        Q.   Thank you.  And what position do you hold now?

 5        A.   I am the managing partner of a company could

 6     Jenkins & Jenkins LLC.  We are -- we provide several different services

 7     to the legal community throughout the United States.  Some of the things

 8     we do are similar to this in that we review cases and make

 9     recommendations to our clients on possible legal action.  We also do

10     things like mock jury scenarios where attorneys get a chance to make

11     their arguments before a panel of citizens before they take their cases

12     to court so that they can refine their arguments.  We have been involved

13     in a large environmental contamination case in Colorado and in

14     New Mexico.  We have done multiple what in the United States we term

15     internal affairs investigations.  That is investigations involving police

16     misconduct.  And the police organizations are too small to have a

17     dedicated unit to perform those investigations, and they have come to us

18     and contracted with our company to perform those investigations for them

19     and report our findings to the chief or the mayor of that municipality so

20     they can take appropriate disciplinary action if it's required.

21        Q.   Thank you.  And when was that company founded?

22        A.   That company was founded in January of 1996.

23        Q.   And who founded this company?

24        A.   I did.

25             MS. O'LEARY:  Can we have on the screen, please, 1D22-0692.

Page 6428

 1        Q.   And while that's coming up, can you tell us, what's the last

 2     position that you held prior to founding that company?

 3        A.   I was the executive deputy chief of police for the city of

 4     Albuquerque, and effectively that is the second in command of the

 5     organisation, approximately 250 civilians employees, and at the time,

 6     right at that time 750 sworn officers.  Could be a few more about that --

 7     actually, as I think about it at the time I retired we were close to a

 8     thousand, 950 officers.

 9        Q.   And what tasks were in your responsibility when you were in that

10     position as deputy chief?

11        A.   Part of my responsibility, I really was in charge of everything

12     that really didn't deal either with the field, with the officers that

13     take calls for service or with investigations, with the detectives.  But

14     I was responsible for some investigative functions within the

15     organisation:  Internal affairs, audits, and inspections are all

16     investigative functions within the department, but we also had

17     responsibility for payroll, personnel, communications, our information

18     systems developing, crime analysis, vehicle maintenance, the police

19     academy, recruiting, all aspects of the police function outside of law

20     enforcement.

21        Q.   Thank you.  There's a document on your screen now in front of

22     you.  Can you tell me what this document is.

23        A.   This is a copy of my CV.

24        Q.   Can you tell us a little bit about your experiencers then, if we

25     go to page 2, and start with your work as a police officer.  Just

Page 6429

 1     briefly, what duties did you undertake as a police officer?

 2        A.   Well, in our organisation, you really start from the ground up.

 3     Everyone that's brought into the organisation begins as a patrolman

 4     second class.  That is a period of time when you're on probation, and as

 5     you work your way up, there's a possibility to grow -- to grow your

 6     career.  From the time I graduated from the police academy initially as

 7     all officers are, they're assigned to field services, which is the part

 8     of the department that takes calls for service; they write reports,

 9     conduct very preliminary investigations and then forward those reports in

10     through the organisation.  We also make misdemeanor arrests, DWIs, write

11     traffic tickets, that sort of thing.  In October of -- actually, I

12     graduated from the police academy in December, end of December, 1st of

13     January of 1972, going into 1973.  Spent some time, approximately a

14     little over a year, year and a half in the field.  In October, I put a

15     letter of request for transfer into the traffic division and was

16     accepted, so I became a motorcycle police officer, and that's where I

17     also began to hone some skills as an investigator investigating traffic

18     accidents, traffic fatalities, as well as continuing to write citations,

19     and make arrests for driving under the influence.  Continued that

20     process, was eventually accepted into what is called the field

21     investigator programme.  As a field investigator, you're responsible for

22     the collection of evidence, handling of that evidence, making sure that

23     it gets to the forensics departments properly sealed and maintained.  We

24     photograph crime scenes, all sorts of things that would not -- the lesser

25     crimes that would not involve actually bringing a forensics team out to

Page 6430

 1     the field to investigate, the lower-level types of crimes; burglaries,

 2     robberies, some sex offenses, that sort of thing.

 3        Q.   And can you tell us how you got involved in more investigative

 4     work or your investigative background.

 5        A.   I was selected to go to the burglary/narcotics unit after my

 6     stint in the field, and once I got into that unit, that is investigations

 7     per se.  I mean, that is all you do is investigations, and I managed a

 8     caseload of approximately 35 to 40 cases a month that involved property

 9     crimes.

10        Q.   And what experience do you have in supervising investigations?

11        A.   When I was promoted to the rank of sergeant, my initial

12     assignment was to the field, back into field services.  After one year's

13     time, I was then reassigned back into investigations to the crime lab.

14     Because of my experience as a field investigator, they felt that I was in

15     the best position to manage that team, and the crime scene team is the

16     team that actually rolls out to major crimes like homicides, you know, if

17     there is a big crime scene that is very technical in the way that it is

18     approached and developed, so I was responsible for all of those sorts of

19     investigations in the field.

20        Q.   Thank you.  And can you tell us a little bit further about

21     homicide investigations that you worked on.

22        A.   Yes.  In addition to the homicide investigations that I worked in

23     the laboratory, at the same time I was assigned in criminalistics or in

24     the lab, I had tested for promotion to the rank of lieutenant and made

25     the list for promotion, finished second on that list, so the commander of

Page 6431

 1     the investigations bureau asked if he could move me, then, from the lab

 2     to violent crimes until such time that I was going to be promoted.  They

 3     want to get somebody in my position and start training them right away to

 4     get them up to speed.

 5             So I was -- I agreed to the transfer.  They moved me then to

 6     violent crimes, and in violent crimes I oversaw the sex crimes unit, but

 7     we rotated through.  There were three sergeants in that unit, the

 8     homicide sergeant, sex crimes, and robbery, and we rotated on an on-call

 9     basis, and as a result I managed to supervise the investigation, probably

10     35 homicides or so, thereabouts.

11        Q.   And can you tell us about any prior experience you have in

12     testifying before a Trial Chamber.

13        A.   Before a Chamber such as this, I have no experience at all, but I

14     have countless hours of testimony before US district courts at all

15     levels, federal, state, and municipal courts.

16        Q.   And what else in your expertise or included in your CV that we

17     haven't touched upon do you feel helps the Trial Chamber assess your

18     expertise?

19        A.   I think just from that it's also important to note that I also

20     had the opportunity to investigate very complex crimes in the organised

21     crimes unit.  Very -- in fact, international, there were a couple of

22     international crimes that were investigated involving money laundering.

23     And it's also important, I think, that the Tribunal know that I also have

24     managed to climb through the ranks to -- finally to the rank of deputy

25     chief and still maintained expertise in case review.

Page 6432

 1        Q.   Thank you.

 2             MS. O'LEARY:  Your Honour, I'd move to admit Mr. Jenkins's CV.

 3             MS. MARCUS:  Your Honour, we object.  And if the Chamber allows,

 4     I'd like to ask Mr. Jenkins a few questions about his expertise.

 5             MS. O'LEARY:  We have no problem with it, Your Honour.

 6                           [Trial Chamber and legal officer confer]

 7             JUDGE ROBINSON:  We have already admitted Mr. Jenkins as an

 8     expert.  I know over the past week we had allowed certain questions, but

 9     the Chamber is not going to allow it on this occasion.  You can ask your

10     questions of him in cross-examination going to the weight of his

11     evidence.

12             MS. MARCUS:  Understood, Your Honours.  Thank you.

13             JUDGE ROBINSON:  Yes, Ms. O'Leary.

14             MS. O'LEARY:  Thank you, Your Honour.  So I would again move to

15     admit the CV.

16             JUDGE ROBINSON:  Yes, we admit it.

17             MS. O'LEARY:  Thank you.

18             THE REGISTRAR:  Exhibit 1D208, Your Honours.

19             MS. O'LEARY:

20        Q.   Now, Mr. Jenkins, how did you become involved in the present

21     case?

22        A.   I received a telephone call from the firm that Mr. Alarid is

23     involved in asking me if I would be interested in reviewing the case with

24     him when he was in town on a break.

25        Q.   When did he first contact you?

Page 6433

 1        A.   I believe the first contact I had on the case from his colleague

 2     was -- I want to say around March of 2008.

 3        Q.   March of 2008?

 4        A.   Correct.

 5        Q.   When did he subsequently contact you?

 6        A.   We finally met, if I remember right, the end of June of 2008.

 7        Q.   And as any preliminary matter, what process did you have to go

 8     through to become assigned to this case?

 9        A.   There was a submission of my CV to the Registry, and at that

10     point I guess it was reviewed by -- I'm really not familiar with the

11     process on this end of it, but I assume that the CV was presented to

12     whoever.  The CV was accepted, and I received notification from the

13     Registry that I had been accepted as an expert witness.

14        Q.   Do you know approximately when that was?  If you don't know, we

15     can move on.

16        A.   I don't know for sure.

17        Q.   Thank you.  When did you subsequently meet with Mr. Alarid to

18     discuss the case further?

19        A.   We met in November of 2008.

20        Q.   And what was the proposed scope of your assignment?

21        A.   He asked me to review some specific areas, the Varda factory, the

22     fire at the Bikavac scene and the Pionirska scene.

23        Q.   And what qualifications do you have that make you suitable for

24     such an assignment?

25        A.   Just 30 years worth of good, hard police work and investigative

Page 6434

 1     experience as reflected in my CV and the ability to know and understand

 2     police functions, how they're supposed to function, and apply that in

 3     a -- I think, a fair and even-handed manner.

 4        Q.   Now, I believe you've seen a copy of the indictment in this case.

 5        A.   Yes, I have.

 6        Q.   Why was your assignment limited to those incidents that you've

 7     listed, Pionirska, Bikavac, and Varda factory?

 8        A.   I think that's where my area of expertise really lies is in the

 9     crime scene evaluation of the process, not so much some of the outlying

10     or peripheral items that are contained in the indictment.

11        Q.   And what perspective or goal did you have in the process of

12     looking at the materials?

13        A.   My goal was simply to evaluate the process and whether or not it

14     met the accepted standards for police investigations that are -- that

15     were in affect not only now but also back in 1994 during the time that

16     this incident took place.

17        Q.   Can you tell us -- I think you said it was November.  Can you

18     tell us back in November, how did you go about beginning to review the

19     materials?

20        A.   I didn't review any of the materials until we had been accepted

21     by the Registry.  That was sometime after the initial meeting, and I --

22     as I said before, I couldn't tell you the exact date, but once that was

23     done and the letter of confidentiality was executed, the materials were

24     turned over to me for review.  That included witness statements, and

25     primarily that's it.  I mean, there were no other reports or documents to

Page 6435

 1     review or to support.

 2        Q.   Did you receive any subsequent materials, photos, other exhibits?

 3        A.   I have received photographs of the scenes that were, I guess,

 4     provided by the ICTY.  We have copies of, like I say, the statements that

 5     were taken by the investigators for ICTY.  That's really all the material

 6     I had at the beginning to review.

 7        Q.   Thank you.

 8        A.   But may I say, it was very voluminous.  There was a lot of

 9     information.

10        Q.   Thank you.  And if I pause, it's simply for the translation.

11     We'll discuss more later, but briefly, can you tell us if you performed

12     any site visits?

13        A.   We did.

14        Q.   When did you perform site visits?

15        A.   In January of 2009, the end of -- January 29th, I believe, of

16     2009.

17             MS. O'LEARY:  And if we could have 1D22-0696 on the screen,

18     please.

19        Q.   Mr. Jenkins, there's a document in front of you on the screen.

20     Can you tell us from the first page here, anyway, what is this document?

21        A.   This is a copy of the report that I generated to the Registry

22     concerning our site visit.

23             MS. O'LEARY:  Your Honour, with your permission, I'd like to give

24     the witness a hard copy so it's easier to flip through.

25             JUDGE ROBINSON:  Yes.

Page 6436

 1             MS. O'LEARY:  And if we could go to the last page, please, and go

 2     down to the bottom of the page, if possible.  Thank you.

 3        Q.   And whose signature is that on the last page?

 4        A.   This is a facsimile of my signature.

 5        Q.   But this is your report?

 6        A.   This is my report.

 7        Q.   The same submitted?

 8        A.   Yes.

 9        Q.   Having had some time now to review this report in preparation for

10     testimony, would there be any changes that you would make to this report?

11        A.   Yes.  There are specifically two items that I would amend.

12        Q.   Okay.  Let's start with the first one.  What is the first change

13     you would like the make?

14        A.   The first thing I would like to -- give me one second, and I'll

15     give you the exact location.  On page 7.

16             MS. O'LEARY:  If we could go to page 7, please.

17             THE WITNESS:  On paragraph 7, at the bottom it states that the

18     bridge is not lighted, but in fact the bridge is lighted.  I would like

19     to amend that part of the report.  The bridge is lighted.

20             MS. O'LEARY:

21        Q.   Thank you.  And you said there was a second change you would like

22     to make.  What is the second change?

23        A.   Second change, is also on page 7, that would be in paragraph 6,

24     the one immediately preceding, and it deals with the damage to the eaves

25     of the house.  Since review of photographs since that time, I have

Page 6437

 1     determined that that roof was actually rebuilt at some point in time, so

 2     that would be why there would be no obvious fire damage to the eaves of

 3     that adjacent residence.

 4        Q.   Thank you.  We can call that up at another time later on in your

 5     testimony and discuss further, but thank you for noting that.

 6             If we could go in the report to page 3 now.  And right about in

 7     the middle of the page.  You indicate that you have some issues of

 8     concern, I believe you said.  Can you please explain -- I don't want to

 9     get too ahead of ourselves, but if you could give us a brief overview of

10     general concerns that you had.

11        A.   The issues of concern that I had concerning my review of the

12     report are really -- for lack of a better word, I guess they are things

13     that one would expect as a professional investigator, areas that should

14     have been covered, and in my review they were areas that seemed to be

15     lacking.  So if there were some way that through further evidence being

16     presented to the contrary, I would be glad to review any of that

17     material, but at this point in time I have not seen anything that would

18     change the way the report reads.  I have major concerns with the way the

19     entire investigation was conducted.

20        Q.   Can you briefly tell us, though, what those major concerns were?

21        A.   Well, from the very onset the way that the witnesses were -- the

22     way the statements were taken from the witnesses at the time.  There's no

23     memorialisation of those statements.  They appear to be versions that the

24     investigators -- they interviewed the witnesses.  They then, for lack of

25     better words, digested that information from the witnesses, and then had

Page 6438

 1     the statements drafted using the words of the investigator rather than

 2     the words of the witness themselves.  By doing that, you run the risk

 3     of -- I won't say contaminating; that's not necessarily the case, but you

 4     run the risk of injecting your own bias as an investigator into the

 5     investigation.  And it also causes problems because there's no accurate

 6     record of what the witnesses have truly said.  It's certainly possible

 7     that because of questions of dialect, of regional slang or whatever that

 8     the words of the witness possibly could have been misunderstood, and

 9     there's no way to go back and know for sure exactly what the witness

10     said.  And some of those things are critical to this particular

11     investigation because it deals so much with the nuances of the case.

12        Q.   I want to go back to your first concern here because it is your

13     first concern in the report, where you're speaking about witness

14     credibility.  And you list a series of questions at page 4.

15             MS. O'LEARY:  If we could go to page 4, please, and skip right

16     down to number 6, actually.

17        Q.   You were briefly just discussing this, but what are these

18     questions that you've listed here?  What do these questions represent?

19        A.   Well, they represent a standard by which investigators should be

20     conducting themselves when they're interviewing witnesses, the idea being

21     that you do not want to lead the witness to a conclusion that you want

22     them to make.  I want to know what the witness is saying without

23     necessarily any interpretation, so I think the proper way in this case to

24     conduct these investigations would be to ask open-ended questions that

25     would give the witness the opportunity to tell their story with as little

Page 6439

 1     interruption as possible.

 2        Q.   And how can translation affect statement-taking?

 3        A.   Well, it's a tremendous problem, I think, in a lot of areas where

 4     you're dealing with people that have -- they're using two or three

 5     languages.  For example, if the investigators are using English and the

 6     witnesses are speaking Bosnian or Serbian, whichever, there's a bridge

 7     that has to be built by the question that's being asked on one side; it

 8     goes through the bridge to the Bosnian side.  We get a response to the

 9     question, and then it comes back the other way.  Well, if there's a

10     misinterpretation or a misunderstanding of the question, then all of a

11     sudden it generates issues within the investigation as to whether or not

12     it was accurately translated, and the correct nuances were asked of the

13     individual.  The only way to get around that that I can see is if it is a

14     recorded -- a continuously recorded statement, much like the transcript

15     of a trial, so that the investigator will have the opportunity to at a

16     later time go through the recording or go through the transcript line by

17     line and make sure that there are no issues.  And also by doing that, it

18     saves the record so that at a later time Defence can independently have

19     the tape transcribed and also for the Prosecution, you can look at those

20     translations side by side to make sure that there are no glaring errors

21     in the way the questions are asked or in the answers that are received.

22        Q.   What observations did you make about this statement-taking method

23     used in this case?

24        A.   The method, although it may be acceptable in some sorts of

25     investigations, for example, a white collar crimes case where most of the

Page 6440

 1     evidence that's going to be reviewed really deals with documents and the

 2     documents will speak for themselves, this particular investigation or

 3     this type of a case involves an accused perpetrator.  This is a different

 4     type of investigation than a white collar investigation.  The nuances are

 5     much more important.  The credibility of the witnesses are much more

 6     important, and therefore, they should be examined more closely.

 7        Q.   What effects would in statement-taking process have on a direct

 8     commission case such as this, in your opinion?

 9        A.   Well, it really provides the first level of the investigative

10     process, so as an investigator, what I want to do is I want to take the

11     statements that my witnesses have given me, and based on that I'm looking

12     for a foundation and direction on how I want to approach this case.  So

13     the statements of the witnesses will help me determine which way the

14     investigation is -- what turns it's going to take to completion, and it's

15     important especially in those early statements that as much

16     information -- truthful and accurate information as possible be gained

17     because from that information, we will develop suspects; we will develop

18     an investigative plan on how we want to approach the crime scene; and

19     really, it is -- those initial statements are the foundation from which

20     the rest of the building blocks of the case will be built.

21        Q.   In looking also at your report, if we move up to number 3, you

22     ask the question:  "Is the witness associated with any victim rights

23     groups that have other agendas?"  What specific concerns arise out of

24     that, or why would an investigator ask that question?

25        A.   I think it speaks to motive.  I think it speaks to credibility.

Page 6441

 1     If there is a victims rights group involved in the process, especially

 2     later on, it calls into question the entire reason why in person is

 3     coming forward.  Is this person -- and it's simply a question that you as

 4     an investigator have to ask yourself:  Why is this person coming forward?

 5     Is the person coming forward in order to receive reparation?  Is there

 6     some reward or benefit to this individual for coming forward?  And if so,

 7     if you can make that determination, what is the witness saying?  Is it of

 8     value to me?  Do I get some sort of gain by bringing this information

 9     forward?  I mean, it just really speaks to the credibility of the

10     witness.

11        Q.   You talk about motives for providing false information.  Have you

12     experienced in your own time as a police officer people with motives?

13        A.   Yes.

14        Q.   How does an investigator ferret out false motives, false

15     testimony motives?

16        A.   Well, it's important, I think, to understand the nature of the

17     crime.  You know, are there any family ties associated with this crime?

18     Revenge is a tremendous motive; so is finances.  They're tremendous

19     motives.  Did the individual come forward of their own volition and

20     provide information?  Are they trying to support the contentions of

21     another family member who has already given a statement?  Are there

22     religious ties associated?  I mean, you really have to look at all of the

23     aspects of someone that has an association with some sort of a victims

24     rights group and ask, you know, is the information valid?  And I'm not

25     saying you should totally discount what they have to say.  But what I am

Page 6442

 1     saying is that you need to look at the motive and be satisfied yourself

 2     that the information that they're giving you is true and correct and not

 3     motivated by some other factor.

 4        Q.   What type of flexibility does an investigator have to have, then,

 5     to try to understand the person they're interviewing and determine

 6     whether there is some albeit mistaken or intentional false testimony?

 7        A.   Well, I think you have a great deal, and what you have to do is

 8     you have to look at statements of the other witnesses.  Does the

 9     information this witness is giving you, is it in lock-step with

10     information from other witnesses?  The way you can -- the way you can

11     separate out -- the way you can separate out the information is by -- I'm

12     sorry, I lost my train of thought.  That's okay.

13             JUDGE ROBINSON:  Perhaps just as well.  Ms. O'Leary, it seems to

14     me that we have covered the general principles of proper investigation,

15     and what we now should be doing is applying them to the case because I

16     presume that he has specific comments to make about the case, which can

17     assist us in our work here.

18             MS. O'LEARY:  Thank you, Your Honour.

19        Q.   You've heard the Judge's comments.  In applying it to the

20     statements that you viewed to the ICTY, what possible motive, accidental,

21     intentional, what factors went into specifically statement-taking here

22     that could affect any sort of credibility in this specific situation in

23     your opinion?

24        A.   We don't know.

25        Q.   Why not?

Page 6443

 1        A.   Because there are no reports that have been filed by the

 2     investigators, so we have no way of knowing what processes were taken in

 3     order to collect those statements.

 4        Q.   In this Tribunal, there's a lot of media coverage because of the

 5     large scale of it.  How can that affect the statements of the witnesses

 6     taken in these cases?

 7        A.   Well, assuming that these people have to go home if they're still

 8     living in the Visegrad area or, for that matter -- it doesn't really

 9     matter.  I mean, if they're going back into their civilian lives, there

10     is the potential for tremendous pressure being applied to them by groups

11     of individuals of their own ethnicity that would like to see an outcome

12     that is favorable to their point of view.

13        Q.   And I think we can move on now from the statement-taking and move

14     on to the area of forensics, which I know you dealt a good deal with in

15     your report, I believe if we turn to the next page of the report.  On

16     page 5, you mention a listing of failures of field investigators in the

17     forensics process.

18             If we go one by one, what can you tell me about the forensics

19     that were done?  What reports did you review in Pionirska?

20        A.   First of all, may I just say that the crimes that are being heard

21     by the Tribunal are certainly horrific, and I am totally sympathetic to

22     the work that the forensics investigators did or didn't do.  I know it

23     was a difficult task.  Now, having said that, from a critical point of

24     view, there were no forensics reports generated by any of the

25     investigators, and I sent e-mails to the Defence on several occasions

Page 6444

 1     asking for copies of forensic reports and was told that there were none

 2     available.  With that in mind, I cannot comment on the work that was done

 3     by any forensics investigators because to the best of my knowledge there

 4     were -- there is no work that was done.  The investigators --

 5             JUDGE ROBINSON:  No work or no report?

 6             THE WITNESS:  I'm sorry?

 7             JUDGE ROBINSON:  No work or no reports?

 8             THE WITNESS:  No reports.  I know of no reports.  I have seen a

 9     video, and I think it was probably the first time that the investigators

10     visited the crime scene.  I think it was around 2001, but, again, I'm not

11     sure because there's no report to document that.  In that video, they

12     take exterior shots of the house on Pionirska.  They go right up to the

13     door, ready to enter into the crime scene, and for some reason they go no

14     further.  Now, why they didn't do that, I don't know, but they chose to

15     stop the cameras, go back, and take other shots of the area.

16             MS. O'LEARY:

17        Q.   Mr. Jenkins, let me just interrupt you.  What would an absence of

18     forensic materials mean?

19        A.   An absence of forensic materials is basically there is no

20     physical evidence that can be linked from the crime scene to either the

21     indictment or trial.  There's no physical evidence of anything that is

22     accepted in a court of law.  Because once you as a law enforcement agency

23     have approached that crime scene, if you leave the scene before the scene

24     is processed, it's generally considered from that point forward that the

25     scene has been abandoned, and any evidence that is obtained subsequent to

Page 6445

 1     the time that the scene has been released is of no value.

 2        Q.   Let's take a hypothetical investigation that you would be

 3     leading.  What steps would you take from the beginning to the end in

 4     investigating the scene of the crime?

 5        A.   Okay.  Hypothetically, what you would do is upon arrival at the

 6     scene, you would want to photographically document the exterior of the

 7     crime scene.  You would want to prepare a sketch of the crime scene for

 8     the investigator's notes as to where he located specific pieces of

 9     evidence; and before the search of the scene for evidence commenced, you

10     would want to take a tape measure and physically measure the size of the

11     room.

12        Q.   Why would you want to do that?

13        A.   So when the evidence was located, you can then go back again with

14     your tape measure and locate where in that crime scene that particular

15     piece of evidence was located.  So if necessary, a forensics investigator

16     could come been the Tribunal and accurately tell the members of the

17     Tribunal at what specific point in the room a particular piece of

18     evidence was found.  It may or may not be important to the case.  That's

19     not up to the investigator to determine.  That is up to the learned body,

20     the Tribunal to give whatever weight to the evidence they see fit.

21        Q.   Proceed with the next step that you'd take.

22        A.   So once the area has been measured, then we want to do a quick

23     visual inventory in the crime scene to see if there's any items of

24     evidence that are immediately available or immediately noticed by the

25     investigator.  So, for example - again, a hypothetical - let's just take

Page 6446

 1     a normal homicide scene, not necessarily one that's involved here but

 2     just a normal homicide.  If you go into the room or you open the door to

 3     the room, you've already, you know, made your drawings and everything,

 4     and you see a gun sitting in the middle of the floor, it's obvious that

 5     that gun is probably going be a piece of evidence; either could be

 6     self-defence, could be the murder weapon, we don't know.  We would want

 7     to locate that weapon in the diagram, and we would do that by measuring

 8     two points, two known points within the crime scene, and we would then

 9     triangulate the location of that weapon.  So if -- for example, if I went

10     along the south wall of a room, and I said from the door jamb 18 inches

11     to the west along the south wall and to a point 3 feet to the north, then

12     we would know one of the axis for the location of that weapon.  Then I

13     would go to the east wall, do the same thing.  From the corner to I point

14     parallel with the weapon, it's this distance; and from that point to the

15     weapon, is so far.  By doing that, now I have actually put the weapon in

16     a cross, as you will, and I can go back to that room and I can put that

17     weapon in the exact location that it was at the time that we conducted

18     the search.

19             Now, in this particular scene, it is a cold crime scene.  I mean,

20     it's beyond cold.  These weapons --

21        Q.   Can I just stop you and ask you what you mean by cold crime

22     scene?

23        A.   A cold crime scene implies that there's been an extended period

24     of time between the actual events that took place and the time that the

25     forensics search was done.  And as time has gone on, there's a potential

Page 6447

 1     for cross-contamination of evidence, that being cross-contamination is a

 2     term of art, for items being brought into the crime scene from the

 3     outside that really have no relevancy to the crime scene itself.

 4             JUDGE ROBINSON:  As in cold case on TV.

 5             THE WITNESS:  Correct.  That's exactly what it is.

 6             MS. O'LEARY:  Thank you, Your Honour.

 7        Q.   What types of materials would cross-contaminate a scene as you're

 8     talking about?

 9        A.   Could be anything.  It really depends on the type of scene.  In

10     our hypothetical homicide, it could be trace evidence such as hair.  It

11     could be trace evidence like fibres.  I mean, there's really -- in our

12     hypothetical, we're talking about a fairly sterile crime scene.  If it's

13     indoors, you know, there's not going to be a lot of cross-contamination

14     initially.  This particular scene is kind of a combination of

15     indoor-outdoor.  It's indoor in the fact that the crime scene is

16     protected from most of the elements, but at the same time there's a lot

17     of problems inside the environment of the crime scene inside, and that

18     causes particular problems for a forensic investigator in the way that

19     they would approach that crime scene.

20        Q.   And right now you're speaking about Pionirska specifically.

21        A.   Correct.

22        Q.   Thank you.

23             But let's talk about time.  Let's talk about time and when the

24     availability of the scene came about.  Given that there was a war in the

25     region, obviously there was not time to get at this scene or any of the

Page 6448

 1     Pionirska, Bikavac, or Varda right away.  When people were available to

 2     go in, how much time would they have needed to be there in hours, days,

 3     weeks, months, years?

 4        A.   Let me first address an issue that deals really with Pionirska.

 5     This combination that we'd talked about of indoor-outdoor scene, it is

 6     covered, but at the same time there are a lot of environmental concerns

 7     in that area.  And I am sensitive to the fact that this was a war zone at

 8     the time.  But having said that, I've also seen photographs of troops

 9     that accompanied the investigators there in the year 2001.  So it wasn't

10     that -- it wasn't that it couldn't have been processed.  It would have

11     just required a security detail to help secure the scene, and then

12     forensics could have been done.  Now, having said that, to properly -- to

13     properly process that scene would probably take in the area of two days,

14     and the reason I say that is not because of the walls or the ceiling.

15     Those could all be done within a matter of hours.  The problem is the

16     floor.  It is not a hard floor.  It is a dirt sub-floor.  And what we

17     would have to do to really do that job correctly would be to grid off the

18     floor in, say, 1-metre squares and then take the soil down anywhere from

19     8 inches to 12 inches, remove that flooring, that sub-floor, and run that

20     through a screen box to see if there was any bone fragments, teeth,

21     jewellery, any documents, anything like that that would help to identify,

22     number 1, that a crime did occur at the scene; and, number 2, if it did

23     occur, is there a possibility that we could obtain evidence that would be

24     useful in the Prosecution?

25             JUDGE ROBINSON:  All right.  Thanks, Ms. O'Leary.

Page 6449

 1             We're going to break now.

 2             Mr. Jenkins, I'd like you to leave, and you'll return tomorrow.

 3     Is it in the morning?  We are on all day at 8.50 a.m.

 4             MS. MARCUS:  Your Honours, sorry, could the Chamber kindly advise

 5     Mr. Jenkins that he's not to speak with anybody?

 6             JUDGE ROBINSON:  Mr. Jenkins, you're familiar with court

 7     proceedings.

 8             THE WITNESS:  I am.

 9             JUDGE ROBINSON:  As a witness, you're not to discuss your

10     evidence with anybody.

11             THE WITNESS:  Yes, Your Honour.

12             JUDGE ROBINSON:  You may leave now.

13             THE WITNESS:  Thank you.

14                           [The witness stands down]

15             JUDGE ROBINSON:  I have a short matter to raise in private

16     session.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 6450

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5                           [Open session]

 6             JUDGE ROBINSON:  So tomorrow we start at 8.50.

 7             THE REGISTRAR:  We're in open session, Your Honours.

 8             JUDGE ROBINSON:  Tomorrow we start at 8.50, and after this

 9     witness's evidence we move to the next witness.  Who is that?

10             MR. ALARID:  Your Honour, we had anticipated that Mr. Rasic would

11     attend.  However, problems with arranging his travel arose, and VWS had

12     to cancel his flight, and there was insufficient time to arrange train in

13     advance for tomorrow, so they cancelled the flight.  So we would conclude

14     tomorrow whenever Mr. Jenkins finalises his testimony.

15             JUDGE ROBINSON:  That is exactly what I was hoping would not

16     happen, that we are not able to utilize the time.

17             MR. ALARID:  I agree, Your Honour.

18             JUDGE ROBINSON:  I worked so hard to get my colleagues to give me

19     their trial time, and now we're not making use of it.

20             MR. ALARID:  I can only -- I could pass you on the VWS -- you

21     know, this is the problem, sometimes we're at the mercy of those things,

22     as well, Your Honour.  But we felt real confident.  We had the flights

23     arranged, and then it didn't pan out.  So if we have to not call him and

24     that's what it ends up being, that's what it'll have to be.

25                           [Trial Chamber and legal officer confer]

Page 6451

 1             JUDGE ROBINSON:  For Monday, you would have the subpoenaed

 2     witnesses?

 3             MR. ALARID:  Question, Your Honour, I take it?  I hope.  I don't

 4     have any control over the methodology of making that happen.  Here was a

 5     concern that we had, Your Honours, VWS asked us for the WIF, and what a

 6     WIF is, is the witness information sheet that we normally fill out with

 7     just the people we know and can get them their passports.  The

 8     complicating factor, Your Honour, is these people received a subpoena,

 9     which means of course we don't have that familiarity with the witness for

10     purposes -- or friendly relationship with the witness, and so we're not

11     sure how to facilitate the travel if we have to do WIFs for people that

12     needed a subpoena to attend this court, and we would assume that there

13     would be something in the process that would account for that.

14             JUDGE ROBINSON:  Yes.

15             Mr. Groome.

16             MR. GROOME:  Your Honour, just with respect to Mr. Rasic, I'm

17     always trying to be mindful of the record.  It just occurs to me to be

18     helpful to preserve what is the reason why -- what happened with the

19     plane?  Was it the plane broken down, and Mr. Rasic was not able to abort

20     it?  Or was the decision taken that it was going to be too much trouble

21     and the decision was taken not to call him?  I think it may be important

22     at a future time.

23             MR. ALARID:  The information I have, Your Honour, is that

24     Mr. Rasic had -- and he demonstrated this, I guess, in previous attempts

25     to book him to secure a support person, and he has a fear of flying, and

Page 6452

 1     I experienced this with him because I flew with him to Austria in the

 2     summertime.  And so when that was disapproved, there was no time to

 3     reschedule him, and he actually said, I'll get in a car and we can

 4     video-link from Belgrade and actually volunteered to drive from Austria

 5     to Belgrade.  However, we had not made the requisite application to the

 6     Court for video-link, so that, despite his intentions, really wasn't able

 7     to be facilitated between yesterday and today, so that's the situation

 8     we're in.

 9             MR. GROOME:  Can I just clarify.  This is the same Vladimir Rasic

10     who played basketball for a university in Florida, went to university in

11     the United States?

12             MR. ALARID:  For a junior college, I believe, but yes.

13             MR. GROOME:  Okay.

14             JUDGE ROBINSON:  Well, one result of our not sitting tomorrow

15     afternoon, since I presume we'll conclude with this witness in the

16     morning?

17             MR. ALARID:  That's a possibility, Your Honour.

18             JUDGE ROBINSON:  Well, in that case I better not say what the

19     result might be.  We'll adjourn until tomorrow morning, 8.50.

20                           --- Whereupon the hearing adjourned at 7.16 p.m.,

21                           to be reconvened on Friday, the 27th day of March,

22                           2009, at 8.50 a.m.