Milosevic Asks Court to Hold Amici in Contempt: Wladimiroff allegedly told press prosecutor had established guilt

On the last day of the Kosovo phase of the trial against him for war crimes, crimes against humanity and genocide, Milosevic demanded that the Trial Chamber find one of the three amici curiae in contempt of court for statements published in a Dutch newspaper. Though translated versions differed, Milosevic claimed Mr. Michail Wladimiroff was quoted in the press stating there is already sufficient evidence to find him guilty. Milosevic asserted this pre-empted the decision of the Trial Chamber and was made before the defense had even begun its case.

Three amici curiae were appointed in January of this year to assist the Trial Chamber to insure that the accused, who refuses legal representation, receives a fair trial. Their duties include raising objections and pursuing lines of cross examination missed by the accused. Earlier in the summer, after the Court 'recognized' two lawyers who were informally assisting Milosevic on a daily basis, the Court said it only required one amicus in the courtroom at any one time. Generally, two of the three have continued to attend court sessions, taking turns assisting with cross examination.

In complaining about Mr. Wladimiroff, Milosevic went on to read statements he allegedly made to the effect that the evidence had established a clear link between the army, police and Milosevic. Mr. Wladimiroff was quoted as disagreeing with his American colleagues that a witness must come forward to say Milosevic commanded the murders. Milosevic called Mr. Wladimiroff's behavior 'impermissible' and 'scandalous,' and a violation of ICTY rules.

In response, Mr. Wladimiroff said the quotations in the article misrepresented what he had said in the interview. According to him, past practice with reporters permitted him to review his statements before anything was published, which wasn't done on this occasion. Substantively, he denied saying there was sufficient evidence to convict the accused. 'What I have said is that at this stage of the trial, on the face of what has been said, there is a kind of relation between the accused and what occurred in Kosovo . . . . It is a matter for the Court [to decide].' He concluded his defense by telling the Court he 'was not very happy with this situation. It is not good for the trial, the accused, me or the amici. . . .'

Judicial reactions varied. Presiding Judge Richard May said he was not concerned with what is said or written outside the courtroom. As a panel of professional judges, they are not swayed by the considerable commentary and speculation in the media. Judge Robinson, however, considered the matter very serious, calling into question Mr. Wladimiroff's qualifications to continue as amicus. Three particular quotations concerned him (likely different translations of the above-described quotes).

1. 'If this trial were only about Kosovo and one had to draw on balance now, Milosevic would certainly be convicted.' Mr. Wladimiroff said these were not his words. Instead he recalled saying, 'we've seen on the face of the prosecution case a link between events in Kosovo and the defendant -- maybe not for all events . . . .'

2. 'The aim of the trial is to show Mr. Milosevic is responsible for the horrible things that happened in his country.' Mr. Wladimiroff claimed he said 'examine' instead of 'show.'

3. Concerning forthcoming evidence about Bosnia and Croatia, Judge Robinson read his alleged words, 'They [the prosecution] had more time to prepare and are more familiar with the issues at hand. It should not be a problem to knit a circle of evidence around Milosevic.' Mr. Wladimiroff told the Court he would be stupid to say that. 'I may have said it should be possible to present evidence in a more organized way.'

Having heard Mr. Wladimiroff?s response, Judge Robinson remained concerned about the lawyer's ability to carry out the duties of an amici to raise all objections open to the accused. Judge Kwon asked Mr. Wladimiroff to put his position in writing for further consideration by the Court.

Lead prosecutor Geoffrey Nice felt duty-bound to advise the Court that there was an earlier incident where Mr. Wladimiroff had to apologize to the OTP for something in the press. He also offered the observation that the situation raised a textbook example of why counsel in a case should never talk to the press. Mr. Wladimiroff pointed out that the prosecutor has a press office whose function is to provide information to the press. Moreover, he insisted that in proceedings before the ICTY, unlike in domestic cases, he, as amicus curiae, has an obligation to address the public.

ICTY rules do not specifically address the situation. Rule 77 provides that the Tribunal has inherent power to 'hold in contempt those who knowingly and willfully interfere with its administration of justice.' The nonexclusive list refers to threatening witnesses, knowingly disclosing information in violation of a court order, refusing to comply with an order to appear in court or provide documents, and refusing to answer a question. Rule 46 addresses the Tribunal's power to remove or punish defense counsel whose conduct is 'offensive, abusive or otherwise obstructs the proper conduct of the proceedings.' Neither rule seems designed for the incident involving Mr. Wladimiroff, which, if anything, is a matter of poor judgment rather than intentional wrongdoing.

The ICTY has also adopted a Code of Professional Conduct for Defence Counsel that includes admonitions such as 'Counsel must at all times have due regard to the fair conduct of proceedings,' and 'Counsel must take all necessary steps to ensure that their actions do not bring proceedings before the Tribunal into disrepute.' While Mr.Wladimiroff is not a defence counsel, he was appointed directly by the Trial Chamber to assist the Chamber in assuring that the unrepresented accused receives a fair trial. Despite the vagueness of the rules, there is little question that the Chamber has the authority to discipline Mr. Wladimiroff, including removal from the case.

No question has been raised about Mr. Wladimiroff's legal competence and performance in this and other trials before the ICTY. To this observer, Milosevic has been better served by Mr. Wladimiroff than by his own lengthy, abusive and often irrelevant questioning. Of course, a good legal defense is not Milosevic's goal. As he has stated many times, he seeks to remain the victim -- of NATO aggression, the so-called international community, the ICTY and what he calls the quisling government in Belgrade. Whatever happens with Mr. Wladimiroff, Milosevic will use the incident to promote his victim status.

Mr. Wladimiroff's primary obligation is to the Court, to assist it in assuring the accused receives a fair trial by raising objections and pursuing lines of cross examination that the accused has missed. Still, important interests are served by a public trial, assisted by comments from knowledgeable insiders. Whether Mr. Wladimiroff is right that he has an obligation to address the public, he must use care to say nothing that might bring the fairness of the proceedings into question. There's always risk of being misquoted by the press and it is highly unusual for an interviewee to have any right to review his statements before they are published. Whatever the Trial Chamber decides in this case, a more detailed code of professional conduct for lawyers who appear before the Tribunal (which is reportedly in the works) will serve everyone's interests.