Managing the Unmanageable -- Court Limits Prosecution: Court rules prosecution must complete its case in one year

Despite lead prosecutor Geoffrey Nice's plea that the Court not set a time limit for conclusion of its case against Slobodan Milosevic, the Trial Chamber ruled that all three parts of the prosecution case – Kosovo, Croatia and Bosnia – must be concluded within one year – by April 10, 2003. Anything longer could affect the accused's ability to defend himself, the Court said. The Court also pointed out that a case which continues for years negatively affects the court's ability to reach a judgment.

While procedural in nature, the issue goes to the heart of assuring a fair trial. As Judge May pointed out in giving the Court's ruling, the case against Slobodan Milosevic is of 'immense scope and great importance.' In the context of facts spanning nearly a decade, occurring over a large geographic area that encompasses three countries, involving millions of people and three wars that were allegedly part of a joint criminal enterprise, involving dozens of named and unnamed perpetrators, the court must manage this megatrial so that it is coherent, as well as expeditious. In doing so it must also try to balance the accused's right to a fair trial, the victims' right to a public hearing and everyone's right to justice.

The trial must be understandable to the accused so that he can answer the grievous charges (contained in 66 counts) against him, charges that if proven will put him behind bars for the rest of his life. The trial must also be comprehensible to the victims who seek public acknowledgment that the tragedies inflicted upon them will not be tolerated. Because the crimes charged are crimes against humanity, the trial must be managed in a way that it can be evaluated by the greater public which also has been harmed by such heinous violations of basic human rights as those charged. To achieve all this, the massive amount of evidence must be managed to facilitate the court's understanding of events and culpability so that it can render a just verdict. That requires enough information to get a clear and relatively complete picture but not so much as to overwhelm the ability to comprehend it.

In setting a time limit, the court did not find persuasive the prosecutor's concern that it would give Milosevic control over the prosecution's case. By drawing out cross examination, Milosevic can effectively limit the number of witnesses the prosecution is able to call. Judge May responded to the concern by saying it is the court's duty to contain cross examination within reasonable limits and that it would continue to do so. It will continue to be a heavy burden for the court as Milosevic refuses to acknowledge the court's legitimacy, instead using it as a forum to inform the public about what he considers a massive Western conspiracy against him and the Serbian people.

Nor was the Court moved when Mr. Nice pointed out that the Appeals Chamber in another case held that a trial chamber-imposed time limit on the prosecution was error because the issues were unclear at that time. Judge May felt the issues might not be clear in the Milosevic case until the defense begins its case in chief, but that could not justify any prosecution case lasting longer than 14 months.

Calculating that the prosecution was proposing to call 1000 witnesses, Judge May concluded that 'no trial can take place under these circumstances.' Mr. Nice responded that he had no intention of actually calling 1000 witnesses; the numbers merely showed how many witnesses would be called if all necessary evidence were presented in a conventional manner. He proposed several methods for substantially reducing the amount of live testimony, including written summaries of duplicative or confirmatory witness evidence, a method which has already been allowed in the Kosovo part of the trial. Since the court granted Milosevic the right to cross examine on these written statements, the amount of time saved is significantly less than originally anticipated. It can be expected that, to the extent the court continues to allow written summaries in the Croatia and Bosnia segments, it will also continue to allow live cross examination.

Other time-saving methods the prosecutor suggested include use of transcripts from other trials where similar issues or witnesses have appeared, and asking the court to reconsider its order prohibiting an investigator from summarizing thousands of witness statements he has only read. Mr. Nice pointed out that this type of summary testimony, allowed under Tribunal Rule 92bis, has been admitted in three other cases, suggesting that he would at some point ask this Court to revisit its ruling against such summarizing testimony.

Judge Robinson suggested that the number of crime sites (47 in Bosnia, where, without culling, the number of prosecution witnesses would be 566) might also be reduced by taking a representative sample. In fact, this is just what the prosecution did with the Kosovo segment of the case for which there were 1300 witness statements, reducing the number of sites from 24 to 10 and the number of live witnesses from 10 per site to 1 or 2. The total number of witnesses anticipated in the prosecution's Kosovo case is about 100. Mr. Nice indicated a similar selection would be made in the Croatia and Bosnia segments. In selecting which 1 or 2 witnesses to call from a potential 20 or more, the prosecution is guided by the need to present a clear and compelling picture of what happened, as well as the legal requirement that he provide all exculpatory statements to the defense. 'It is inevitably an area of judgment,' Mr. Nice told the court. 'As we select down to 1 or 2 witnesses per site, we cannot be sure we're getting it right all the time.'

On a related issue, the prosecution proposed to provide the Court with 'location binders,' which it now provides to the accused and amici. Each binder contains a site specific summary of crimes as well as brief summaries of all relevant witness statements, including those who will not be called as live witnesses and those whose written statements will not be introduced. The summaries are written by investigators based on field interviews with witnesses; the binder also includes an investigator's summary of all the investigators' individual witness summaries. According to Mr. Nice, the binders would enable the court, together with the parties, to both narrow the issues, assure that sufficient testimony is presented to provide a complete picture and not omit exculpatory material. The binders would not be introduced as evidence, but merely provided as an aid to the Court to insure it has a complete picture of the evidence available. The challenge is for the judges to differentiate in their minds between evidence legally introduced at trial and this 'background' material, which, as the amici pointed out, has not been taken under judicial controls but by investigators in the field. The prosecutor proposed that binder review occur two weeks prior to presenting evidence on a particular crime site.

The Court left to another day a decision on which, if any, time-saving methods to allow, including whether it would accept the location binder. In reaching its decision, it must balance the need for an expeditious trial with the need for a fair one in which the prosecution can fully present its case and the accused can adequately defend himself.