Court Erupts in Chaos: Milosevic questioning misleads the Court

Milosevic's cross examination style has been called 'brilliant' by some, usually in conjunction with a reference to his legal education. But is it brilliant cross examination or brilliant interrogation, or brilliant at all?

While Milosevic obtained his undergraduate university degree in law, he was never admitted to the bar or practiced law. Nor is his cross examination style rooted in his education. More likely, it is rooted in his experience with 'skills' used in the era of show trials, where an ideological result was desired rather than the truth.

Whatever its origin, it is not proper cross examination in a trial for war crimes and crimes against humanity at the International Tribunal for the Former Yugoslavia. Where it might sway a jury or even the general public, the three professional judges who will decide Milosevic's fate have shown themselves to be unimpressed. Nevertheless, his tactics -- designed to confuse rather than elucidate -- were very nearly effective when he cross examined two witnesses last week.

In one instance, a prosecution misstatement in its oral summary of Mr. Ali Djogaj's evidence provided Milosevic the opportunity. Mr. Djogaj had given two statements to ICTY investigators on two separate occasions in spring 2000. Each statement was about a separate incident, both of which occurred a year earlier in spring 1999. To further complicate matters, Mr. Djogaj accompanied investigators to at least one of the sites in June 2000. His statements were submitted into evidence under Rule 92bis, which allows the court to receive cumulative evidence of an event in written form. Under an earlier ruling by the Trial Chamber, the accused is allowed to cross examine these '92bis witnesses' in court following a brief oral summary of the statements by the prosecutor. In this case, the prosecutor in her summary mistakenly said that the second incident occurred in spring 2000 instead of spring 1999. While no one else caught the error, Milosevic apparently did.

Mr. Djogaj was employed as a street cleaner and later a gravedigger. In spring of 1999, he and about 15 others were ordered to assist in the exhumation and reburial of about 90 bodies in the area of Pusto Celo. On a second occasion a few weeks later, the group performed another exhumation and reburial, this time at a police firing range. Serb police and Yugoslav military were present on both occasions. Milosevic approached the subject by asking two questions at once, another of his techniques which tends to confuse witnesses.

Milosevic: 'We have two of your statements. You gave the second three months after the first. In the second you speak of exhumations from the firing range and refrigerator trucks. How come you didn?t mention this during the first statement? Was it really April 2000?'

If Milosevic had stopped after his first question, the witness and the Court might not have gotten confused. Instead, without waiting for an answer, he asked a second -- unclear -- question, 'Was it really April 2000?' Apparently, what he meant was, 'Did the second incident at the firing range really occur in April 2000?' Milosevic knew it didn't. In April 2000 all Serbian and Yugoslav forces had left Kosovo, as he later pointed out. As a result of this conflation of dates, Milosevic's first question went unanswered until the following day. In the interim, the courtroom erupted in chaos.

It achieved Milosevic's goal of confusing the witness, who he had already derided for lacking even a complete grammar school education. It confused the Court as well, as the following statement by Judge May shows, 'There were two events. One in Pusto Celo in April/May 1999. The second in April/May 2000 on the firing range.' The prosecutor, Cristina Romano, intervened to clarify that all the events described occurred in 1999, while the statements were given in 2000. No one listened to her.

The Amici Branislav Tapuskovic then confused things further by cross examining on alleged discrepancies in the witness's testimony: 'In one place, he says he couldn't see the bodies; in another he says they were all wearing civilian clothes.' 'In one statement, he says all the bodies were elderly; in the second, he says there were 7-8 children.' Mr. Tapuskovic missed the fact that there were two distinct incidents. Though Ms. Romano intervened yet again to point out where the mistake had occurred, she was again ignored and subsequently chastised by Judge May for 'having statements that are not clear.' He adjourned the trial until the next day, concluding that everything was a muddle and would have to be sorted out overnight.

Finally, the next day, Ms. Romano got the attention of the Court and clarified that the events on the firing range occurred in April 1999. On 24 May 2000, the witness went to that site with the OTP, and on 12 June 2000 he made his second statement to the OTP. But when she said the confusion was created by the accused, Judge May irritably corrected her: 'It was the prosecution summary that had the wrong date. Be careful in the future. . . .' Yet a review of the cross examination shows that Milosevic exploited the prosecution's mistake by using it to confuse the witness -- and the Court. Unlike a qualified defense counsel, he felt no obligation to the Court or to the fairness of the proceeding to assist in correcting a mistake. Indeed, he exploited it to undermine the witness's credibility.

In the end, Judge May asked Mr. Djogaj the one important question that had gone unanswered from the previous day: 'Why in the first statement was there no mention of the [incident at the] firing range?' Milosevic interrupted to object vigorously, questioning the purpose of cross examination if not to challenge the witness's misstatement. Through the confusion generated by the prosecution's mistake and his conflated cross examination, Milosevic felt he had caught the witness in a lie and he wanted it recognized. He did not want the matter clarified. Milosevic: 'Mr. Djogaj, did you state yesterday that exhumations at the firing range occurred in 2000?' But Judge May interrupted, 'If he did, it was confusion and counsel put it to him.' In fact, counsel had not put it to him. Milosevic had in his efforts to exploit the prosecution's error.
Judge May then returned to the primary issue: 'You made a statement in May 2000 and didn't mention the firing range. Can you explain?' Mr. Djogaj gave the most obvious of answers, 'Because when I gave the first statement they asked about Pusto Celo and later they asked about the firing range.' It is a classic lesson for all investigators -- if you ask a specific question, you are likely to get a specific answer -- and no more.

Milosevic, unable to see his victory disappear, tried four more times to get the witness to admit he had lied the day before by saying the second exhumation occurred in 2000. Mr. Djogaj, his credibility intact, merely stated, 'It happened in spring 1999.'

In another incident, Milosevic very nearly succeeded in fooling the Court into believing the Prosecutor was guilty of introducing hearsay as direct evidence. Mr. Hani Hoxha told the ICTY investigator of two different events, close in time. The first involved the murder of his neighbor, which his neighbor's daughter Ata related to him. The second involved an attack on his own home, when 8 to 10 masked men came over the wall into his compound, shooting toward his door. His wife, adult daughters and grandchildren, among others, were hiding in the basement. Believing women and children would not be harmed, they had agreed ahead of time that in the event of danger the men would flee, which is what Mr. Hoxha did. He returned later to find his home burned, and his family murdered.

Mr. Hoxha's testimony also proceeded under Rule 92bis. Prosecutor Daniel Saxon read a summary of the witness's statement to investigators, which was entered into evidence. Milosevic then cross examined Mr. Hoxha, focusing on the incident which the witness had not actually seen, instead of the one he had witnessed which led to the murder of his family. Picking up on a question from Judge May, Milosevic attempted to undermine the witness's credibility by implying that his statement was hearsay, a retelling of something he had been told but had not seen.

Judge May: 'Can you help us, Mr. Hoxha? Was this something you saw or were told, that he [his neighbor] was pursued by attackers?'
Witness: 'I didn't say I saw him with the candle. It was told to me by his daughter. Perhaps it was not properly translated.'
Milosevic: 'How many people were in the courtyard? You didn't see this either? Someone else told. . . ?'
Witness: 'I didn't see the number of people. I heard noises and shouting. Ata said 20 to 30 people were there.'
Milosevic: 'Now I understand. Does this also mean his daughter and wife climbed to the second floor, something they told you? You couldn't have seen it.'
Witness: 'All are what Ata Pruthi said. I have nothing to say on my own account. She is alive. His wife is alive. You can ask them.'

The cross examination continued in this vein, as Milosevic highlighted the hearsay nature of Mr. Hoxha's account of his neighbor's murder and Mr. Hoxha repeatedly affirmed that that he never said he had seen it. Milosevic spent far less time on the incident of which Mr. Hoxha had first hand knowledge, the attack on his house leading to its burning and the murder of his family. In the end, Milosevic's hammering at the hearsay nature of his account of the first incident led Judge Robinson to reprimand the prosecution.

Judge Robinson: 'Mr. Saxon, I wanted to comment on the statement we just admitted [Hani Hoxha] and also to many of the statements presented in a manner that suggests what is written is direct, original evidence when it is hearsay. It is true that we admit hearsay when it is relevant. . . . [But it can be misleading.] If the cross examiner is not sufficiently careful to ask questions to elicit the answer that this is not something the witness saw, then the cross examiner is misled. This is not the fault of the witness. It is the fault of the investigator.'

While showing appropriate deference to the Court, Prosecutor Daniel Saxon nevertheless pointed out that the witness's statement was clear about what Mr. Hoxha saw and what was only told to him. '[A] careful reading of the text indicates the witness was speaking of what he heard from another person. 'I found out from my daughter when S's[name unclear] daughter called her.' . . . Regarding the killing of Pruthi, the witness says, 'I heard the shots, but did not see him killed.' The reader is put on notice that some of the events the witness didn't see first hand.'

Milosevic must have been enjoying the Court's reprimands to the prosecution. But the prosecution's response showed they were onto him. Even if he had managed to confuse the Court and lead it astray, the prosecution was able to put it right. Nevertheless, it is clear that the Trial Chamber as well as the Prosecution must stay alert to Milosevic's tactics. Despite his active participation in the trial, he continues to affirm that the Tribunal has no legitimacy, he does not recognize its authority and he is merely using the opportunity afforded by it to present his (political) case to the public. In those circumstances, anything goes. He has no intention of abiding by the rules of the court or of adopting a legitimate cross examination style, despite the judges' efforts to educate him.

While some might call his cross examination techniques brilliant, the description of another observer seems more apt. 'His skills are those of a used car salesman.' It is a particular worldview where skill at manipulation and deception is considered brilliant. That worldview should not prevail in a court of law.