Court Limits Trial Schedule, Considers Appointment of Counsel

Based on today's ruling by the Milosevic Trial Chamber, the Prosecution's case will continue into next year. A cardiologist examining the Accused recommended that the trial schedule be reduced to three days on and four days off, and the Court accepted the recommendation. The Prosecution made a number of additional recommendations to assure that unexpected delays and resulting problems are minimized. Amicus Curiae Steven Kay opposed all suggestions and warned the Court that the Accused might become too ill to stand trial at all.

Noting that the situation of a self-represented accused with chronic health problems which interfere substantially with the trial is unprecedented and not covered by ICTY rules, Prosecutor Geoffrey Nice advised the Court that it had the inherent power to fashion a remedy or seek an immediate rule change. ICTY Rule 6 provides several methods for amending the rules, though the judges seemed little interested in this option. Mr. Nice's other suggestions included the assignment or imposition of counsel or standby counsel, and use of videotaped testimony in chief when the Accused is too ill to attend trial, followed by his later cross examination.

The Prosecutor also suggested that the Court require Mr. Milosevic to quit smoking, if it finds on further investigation that quitting smoking results in an immediate 30% fall in blood pressure, as the Prosecutor has been told. Amicus Curiae Steven Kay later responded that the stress from quitting an addiction could outweigh any significant benefits. When questioned by the Court, Mr. Kay also gave his opinion that using videotape depositions would not save any court time or expense, as witnesses who are videotaped would have to appear twice before the Tribunal.

The Prosecutor advised the Court that its case could have been presented in little more than a year of regular trial days, rather than the nearly two years it will take due to the Accused's poor health. He also claimed that cross examination by the Accused and the Amici have substantially exceeded the time taken by the Prosecution by a ratio of 2/3 to 1/3. In his presentation, Mr. Kay vigorously objected. The Prosecution's use of shortened methods of introducing evidence (e.g. written statements and trial transcripts under Rule 92bis), Mr. Kay told the Court, means that more material is entered into evidence which must then be cross examined.

A longer trial is not the only consequence of repeated, unanticipated adjournments, according to Mr. Nice. Significant costs and inconvenience also accrue. Witnesses who are present and ready to testify must be returned home and rescheduled. This has happened to approximately 40 witnesses at a cost of $157,000.00, Mr. Nice told the Court.

The judges showed more interest in the possibility of appointing counsel or standby counsel than they have previously. In his presentation, Mr. Nice urged the Court to consider the public interest in the fair and expeditious administration of justice and 'not just the narrow interests of the Accused.' He also asked the Court to consider the Accused's periodic inability to represent himself and directed the Court's attention to cases where the disability of an accused 'gives rise to authorities saying such people have to be represented.'

Nevertheless, Mr. Nice said the prosecution was not suggesting that Mr. Milosevic be deprived of representing himself. Rather, counsel should be appointed to 'work in tandem' with the Accused 'to reduce his daily workload.' Such assistance might include counsel cross examining crime base witnesses, i.e. those who do not directly testify to the acts or conduct of the Accused but give evidence of crimes committed on the ground, as a result of the joint criminal enterprise. This option would only work, the Prosecutor said, if one of the two Amici Curiae (or possibly one of Milosevic's two assistants) fill this role, since they are familiar with the case and would not require the preparation time another counsel would.

Mr. Kay, who addressed the Court for the Amici, voiced strong opposition to the Prosecution's proposals, accusing the Prosecution of causing the Accused's exhaustion. 'The exhaustion of the Accused can be said to be a direct result of the failure [of the Prosecution] to shape and hone their case from day one,' Mr. Kay argued, pointing out that the Accused has been inundated with massive amounts of material which is impossible for him (or the Amici) to organize and track.

When Mr. Kay suggested that the Accused may at some point no longer be able to stand trial, Judge May interrupted to remind him of his role as Friend of the Court (not defense counsel) and to ask that he respond to the Prosecution's position that Mr. Milosevic might be at least partially responsible for the current situation due to his insistence on representing himself. Mr. Kay appeared to take the position that an individual has an absolute right to defend him or herself, though this is not even the case in the United States where the right of self-representation is constitutional.

Mr. Kay argued that when one gives up his right to self-representation he must hope that the one to whom he relinquishes the right (a qualified legal professional) will do a job with which he is satisfied. Accused are represented by attorneys in about 99% of criminal trials. That is the way the system is set up at this time. While there are certainly attorneys who perform poorly, for the most part an attorney receives years of training and more years of experience that enable him or her to navigate the complexities of a criminal trial in a way a lay person cannot. In the United States, civil rights lawyers, defense lawyers and accused fought long and hard for the right of an accused to be represented by counsel.

Mr. Kay would have the Court believe it is a disadvantage for an accused to be represented by counsel. As he told the Court, it relegates the accused to the role of a 'mere observer' in his trial. Yet Mr. Kay also argued that representation by legal counsel cannot be effective unless the accused gives instructions to counsel on how he wishes the case to proceed. Without such instructions, the Amicus said, 'it is very difficult for counsel to know if he's putting the right case or even to understand the case of the man he's representing.' According to Mr. Kay, experience shows that Mr. Milosevic will not communicate with appointed counsel, since he neither wants counsel nor recognizes the legitimacy of the Tribunal

While it is likely true that Milosevic will refuse to communicate with any counsel appointed for him, it is questionable that Mr. Kay or Mr. Branislav Tapuskovic, the other Amicus, who have followed the trial from the beginning, would lack an understanding of the case Mr. Milosevic wishes to make. The problem is that the case he wishes to make has little or nothing to do with the trial. As he has said repeatedly, he recognizes neither the Tribunal nor the proceeding and is only using it as a forum to defend the Serbian people and make a historical record according to his vision of events in the former Yugoslavia. It is true that no attorney can make this case for the Accused, as the Court would not allow it. It simply is not the proper venue. The issues before the court are the guilt or innocence of Slobodan Milosevic on the charges leveled against him. The issues are not whether Serbs, Croats or Bosniaks are responsible for the breakup of Yugoslavia or which ethnicity is more to blame for war crimes. The Court would not and should not lend itself to an endeavor that seeks to assign blame based on ethnicity, a continuation of the discriminatory world view that made war, murder and ethnic cleansing possible. That representation by counsel could not accomplish the illegitimate goals of the Accused supports the case for counsel, not for continued self-representation.
Those who follow this trial watch it through their own eyes. Perspectives differ based on many factors. Sometimes the perspectives are as different as the world seen by a mouse and a giraffe. From this observer's perspective, Mr. Milosevic has done a masterful job of controlling and manipulating the trial process to his own ends. I write that while acknowledging that his health problems are real. Because they're real, he has an obligation to attend to them. There is little question that acting as his own counsel is a significant factor in his stress and high blood pressure. Conversely, it is very likely his health would improve if he were not burdened with his own defense and all it entails -- in-court questioning, as well as out-of-court preparation. His choice is to continue representing himself, leaving it to the Court to adjust to his preferences (which are not inviolable rights). To date, it has done so. Yet the Accused has only scorn for the Tribunal, minimally following its rules so that he may continue to use it as a forum for his purposes. This does not serve justice. The Accused's interests are not the only ones the Court must be concerned with. It has an overarching duty to the public to make justice and to uphold the integrity of the process in doing so. Allowing the Accused to manipulate the process for his own purposes threatens to undermine its integrity in the eyes of the world. With 46 days of the prosecution's case left and the entire defense case before it, the Court must consider carefully all the interests involved and how best to make justice in this most problematic of cases.

In addition to revising the trial schedule as recommended by the cardiologist, the Court held it would consider the prosecution's and amici's other submissions and allow the Accused the opportunity to read the hearing transcript and make any submissions he wishes before it makes any further rulings on the matter.