Examining Milosevic's Cross Examination: The Accused's technique seeks to obscure not enlighten

ATTEMPTS TO INTIMIDATE

Milosevic's bullying style of cross examination did him no good when he questioned Mr. Sabit Kadriu, former head of the Vushtri/Vucitern branch of the Council for the Defense of Human Rights and Freedoms. Having been restricted to yes or no answers by Prosecutor Geoffrey Nice, backed up by a vigilant and impatient Judge May, Mr. Kadriu seemed to relish the opportunity to confront Milosevic, while challenging his version of the facts. The following colloquy is an example.

MILOSEVIC: 'You spoke about an incident where Adem Jashari died. That is a good example of how killers and terrorists are being claimed to be civilians. You said that he was overpowered when he ran out of ammunition. Therefore, you quite clearly indicate the fact that Jashari and his group of bandits fought against police and shot at them and there were several tens of them.'

WITNESS: 'Jashari defended his own home and his own doorstep. I know that. I also know another truth. In his house, women, children, girls were massacred. Sixty-three graves were dug -- mainly of civilians. I don't deny that Jashari defended his own home, but you attacked it.'
. . .
MILOSEVIC: 'Do you know that the police did not shoot when they came to arrest him. They asked them to come out.'

WITNESS: 'I don't know that but I'm glad you do because it shows you knew everything that was going on there.'

Of course, this is exactly what the prosecutor hopes to prove.

DISTORTED, ERRONEOUS & MISLEADING STATEMENTS

Though Milosevic may have known everything of importance that was going on, it appears he missed some of the details, the kind in which his secret police were supposed to be well-versed. In questioning an earlier witness, Mr. Qamal Shabani, Milosevic asked, 'Isn't it correct that before the bombing your brother, as a member of the KLA, got killed crossing back into the country in April?' Mr. Shabani's answer definitively ended this line of questioning, 'That's not true. My brother was a retired man. He retired as an invalid, suffering from heart disease. When democratic change came to Albania, he went there to recover from his illness. He died from a heart attack in Dures [Albania in 1993].'

As mentioned below, Milosevic is not above intentional distortion in conducting his cross examination. Pretending to read in English from the Human Rights Watch Report, 'Under Orders: War Crimes in Kosovo,' Milosevic implied that the report had concluded that the KLA had killed 12 members of the Gerxhaliu family. In fact, the report concluded they were killed by 'Government forces.' (pp. 409-11)

AIDING THE PROSECUTION

One of the weaknesses of Milosevic's cross examination style is asking questions that allow the witness to present evidence he was unable to speak about on direct examination. This violates a cardinal, though informal, rule learned by all first year trial attorneys: Never ask a question you don't know the answer to. Milosevic repeatedly violates it, to the prosecution's advantage.

For example, he asked Mr. Shabani: 'You said that when the bombing started, the Serb forces became more furious and wild. How did you come to that conclusion? Did they froth at the mouth?' This allowed Mr. Shabani to expand on the abbreviated statement he had made on direct examination: 'The savagery was manifested in the way they treated the people. They beat people. Fired at roofs of houses, insulted them as they passed by, and other such acts.' Milosevic follows up by asking 'Did they hit anyone?' to which the witness answers, 'Yes. We have two cases. A woman and man were injured.'

In another colloquy with the same witness, Milosevic asks, 'You said you were afraid. One hundred people were there. It was raining?' Mr. Shabani answers, 'Yes, that's right. When murders, injuries were committed we were scared, panicky and left our homes and took to the mountains.' Not content with this answer, Milosevic goes on, 'As it was raining, you went back inside.' Witness: 'The next morning. We spent the night outside in the rain -- everyone. Women and children.'

With Milosevic's help, Mr. Shabani was able to draw a more graphic and nuanced picture of what it was like in his village when the war began and Serb forces reacted to NATO bombing by turning their wrath on the civilian population.

USING RIDICULE AND SARCASM

Another cornerstone of Milosevic's style is ridicule and sarcasm. During cross examination of Mr. Kadriu, Milosevic made the following remarks: 'I can't even have a comment to something as ludicrous as that.' 'You spoke about an attack on Qirez. That is incorrect because nothing else you said was correct.' ?Now we have heard an absolutely fantastic assertion.' 'As for massacres, we know whose specialty that is. That's why I asked about al-Qaeda.' Occasionally, Judge May has intervened to admonish Milosevic that cross examination is not the time for commentary, but it has done little to reform him.

While Milosevic's sarcasm may have played well back home, it failed to intimidate Mr. Kadriu. Despite Judge May's warnings to Mr. Kadriu to just answer the questions and refrain from comment, on occasion his anger boiled over. From a 1999 Intelligence Report stating that Eastern Kosovo was not in conflict, Milosevic read, 'The actions of the Security Forces are not directed against Albanians but against military groups and supporters.' He asked Mr. Kadriu if that was correct or not.

WITNESS: 'I don't know what they have written. I do know your army and police killed about 15,000 people, Mr. Milosevic.'

MILOSEVIC: 'I'm not asking you about your fabricated interpretation. Just yes or no.'

WITNESS: 'No. Your police and army threw people out with violence. They were collected in cities, driven away forcibly. Some were killed. Some evicted. One million people were deported to Albania, Macedonia and other countries. You did ethnic cleansing of Kosovo. That's what you did.'

Similarly, when Milosevic implied that a Human Rights Watch report concluded that the KLA had killed 12 members of the Gerzhaliu family, though it had done nothing of the sort, Mr. Kadriu responded: 'This is a mockery of the victims and he should be ashamed of himself.'

CONTEMPT FOR THE COURT

This exchange exemplifies most of the four and a half hours of Milosevic's cross examination of Mr. Kadriu. As Mr. Kadriu stood up to Milosevic's aggressive and often sarcastic questioning, the accused turned his irritation on the court. After one intervention by Judge May, Milosevic expressed his pique, 'I should like to ask you not to give me instructions.' Yet another time, when Judge May advised Milosevic that the witness had already answered his question, Milosevic responded, 'He doesn't need that much assistance.' Milosevic also complained that the Trial Chamber had limited his time for cross examination: 'You don't have the right to restrict cross examination according to your own rules. The prosecutor had much longer.' To which Judge May replied, 'The practice of the Tribunal allows the limitation of examination and cross examination.'

No counsel would be permitted to make such disrespectful statements to the court or to a witness, as Milosevic routinely gets away with. Nor would he or she be allowed to so cavalierly and repeatedly include misleading, erroneous and distorted facts and suppositions under the guise of cross examination. The Tribunal's Code of Professional Conduct for Defense Counsel requires counsel to 'act fairly, honestly and courteously towards' other counsel and their clients. Article 17 (1). Defense counsel are also required to 'take all necessary steps to correct an incorrect statement made by Counsel in proceedings . . . as soon as possible after Counsel becomes aware that the statement was incorrect.' Article 13(4). The rules go on to provide that 'It is professional misconduct for Counsel, inter alia, to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' Article 20.

Despite his law degree, Milosevic is not a lawyer and conducting his own defense does not make him one. Therefore, he is not subject to the Defense Counsel's Code of Professional Conduct or to regulation by a local bar association. In addition, because he is not represented by qualified counsel, the court must grant him greater leeway in cross examination to assure he has a fair trial. Indeed, the judges have taken great pains to explain to him the proper role of cross examination, how to present evidence and the appropriate time for argument, though he has yet to demonstrate assimilation of these lessons.

Cross examination by a self-represented accused who does not accept the court's legitimacy and has little to lose in undermining and showing his contempt for the process provides the Trial Chamber with a unique challenge to maintain courtroom dignity and decorum, while assuring a fair trial for the accused. While the Chamber has contempt power and can remove an accused if he persists in disruptive behavior, neither Milosevic's cross examination style nor his occasional tirades about the illegality of the Tribunal have yet risen to such a level. For the moment, the Chamber will continue to rely on verbal restraint of the accused and his willingness to obey Chamber directives. While Milosevic pushes the limits at every opportunity, he has so far complied with the Court's directions. Whether the Court can teach him the art of skillful and proper cross examination seems less likely.