Milosevic Defense Case Previewed: Accused Asks Two Year Break At Liberty

What is destined to be the longest trial in history paused today for a brief look into its future. The occasion was a status conference to discuss procedural matters concerning the defense case, which by rule follows the Prosecution’s presentation of evidence against the Accused, Slobodan Milosevic. The Prosecution case began February 12, 2002 and is expected to end in December this year.

One of the major questions facing the Trial Chamber is how long to allow the Accused for preparing his case after the Prosecution rests. In the vast majority of domestic trials, the defense presents its case directly following the prosecution, with no break. Given the complex nature of war crimes cases, the ICTY has followed a practice of granting a recess inbetween. In the early days, chambers granted as much as six months for defense preparation. As Judge May noted in today’s hearing, that is no longer the case. The average is one month.

Mr. Milosevic told the Court that the barest minimum time he required for preparation was in excess of two years. Despite his arguments, supported and embellished by the Amicus Steven Kay, the Court indicated such a length of time was out of the question. As Judge May pronounced, “There can be no question during the trial of a break of two years.” He went on to say, “We will consider what is a reasonable amount of time for the Accused to have to prepare his case.”

Mr. Milosevic and Mr. Kay argued that a substantial pause was required because of several peculiarities of the case. It involves three wars over a ten year period, two NATO bombings and an accused who was a former head of state. Milosevic lacks anywhere near the resources of the Prosecution, relying on the help of two legal assistants. He does not have a team of lawyers, investigators and support staff as the Prosecution does. He is representing himself, which generally requires that the Court grant him more leeway since he lacks the skills of a trained advocate. He lacks access to facilities for interviewing witnesses, organizing and managing his case. The Prosecution has served at least half a million pages of documents on the Accused. Considering when the indictments were brought (Kosovo in May 1999, Croatia and Bosnia in 2001), the Prosecution has had far more time to prepare its case than the Accused requests. These were the arguments the two men made to the Court.

Mr. Milosevic also asked the Court to grant him provisional release while he is preparing his case, saying it would allow him to investigate, interview witnesses and secure needed documents, which he said he cannot do while incarcerated. The Court rather quickly disposed of this request, noting that it had already ruled he was not eligible for Provisional Release and saw no reason to change that decision. The Court promised to address his practical needs for interviewing witnesses privately and organizing documents and exhibits for proper presentation in court.

Judge Robinson asked Mr. Kay what amount of time he thought would be appropriate for preparation of the defense case. Mr. Kay said it depended on the resources, and admitted he was unclear what resources are or would be available to Mr. Milosevic. Judge May noted, “He has shown in cross examination he has a great deal of information available to him.” Mr. Nice later agreed that his questions show he is “extremely well-resourced.” Mr.Nice also pointed out that the Prosecution has done a considerable amount of work for the Accused. Under the ICTY Rules, the Prosecutor is required to provide the Accused with any potentially exculpatory evidence. Those documents constitute a significant part of the paper the Prosecution has served on the Accused, and of which he complains. In addition, Mr. Nice reminded the Chamber of the reality beyond the courtroom. Mr. Milosevic was an active participant in the events covered by the indictment throughout the decade. As such, he does not have to do the extensive investigation that the Prosecution has had to do.

The Prosecutor also reminded the Court that authorities in the former Yugoslavia have obstructed its ability to secure needed documents, necessitating Court intervention. [See CIJ Reports: 'Court Hears Argument on Serbia and Montenegro Cooperation,' June 3, 2003; 'Court Orders Serbia and Montenegro to Produce Documents,' June 13, 2003] While Court assistance was granted at the eleventh hour, it was limited in scope. This prompted an exchange between Mr. Nice and Judge Robinson, when Mr. Nice concluded, the Accused 'has access to documents sometimes far greater than we do.' Judge Robinson suggested, 'Maybe he can give you some assistance.' The Prosecutor responded it would be welcome.

The Prosecutor might have mentioned, but did not, that the trial procedure places a far greater burden on the prosecution than on the defense. The prosecution must produce sufficient evidence to prove that the crimes it alleges occurred beyond any reasonable doubt, and that the links required to tie Mr. Milosevic to those crimes are also established beyond a reasonable doubt. That is the highest standard of proof possible in a court of law. For his part, Milosevic need not prove anything. If the Prosecution fails to meet its burden, then he will be acquitted. Usual practice is for an accused to submit motion and argument to this effect at the close of the prosecution’s case. If the court agrees, it must acquit the accused and release him. Only if the Court does not agree must the accused put on his case. In doing so, the accused is not required to prove his innocence, but only to bring forth enough evidence to raise a reasonable doubt in the minds of the judges.

Further countering the arguments that the Accused lacked necessary resources to prepare a proper defense, Mr. Nice reminded the Chamber, “He elected to appear unrepresented despite a clear opportunity for him to have assistance.” The Court should not, the Prosecutor argued, allow Mr. Milosevic’s choices to justify an extension of a suitable time limit. Judge May acknowledged the point, “Self-representation cannot be allowed to give him advantages.” He went on to say, however, that the Court must consider the reality that Mr. Milosevic is representing himself. Mr. Nice suggested that the Court urge the Accused to accept a case manager to assist in organizing exhibits and other documentation. Even if Milosevic agreed, the issue of his ability to pay would have to be addressed, Judge May noted. While assuring the Court he had no intention of revisiting the issue of appointing counsel over Mr. Milosevic’s objections, Mr. Nice brought the Court’s attention to events in another Trial Chamber, where Judge Schomburg has appointed standby counsel in the case of Vojislav Seselj, who has also chosen to represent himself – and has a reputation for disruption, sometimes violent, of legal proceedings. Mr.Nice suggested the Court might want to consider that possibility, as it formulates its ruling on the defense case. [Concerning Standby Counsel, see CIJ Report 'Court Appoints Standby Counsel in Seselj Case,' May 12, 2003]

The Chamber advised the parties it would take the arguments into consideration in reaching its decision about time required for preparation of the defense case. Judge May also said they would consult with the Registrar in attempting to formulate a way to deal with the practicalities of a self-represented accused preparing witnesses and exhibits while in custody. That includes Mr. Nice’s suggestion that they appoint a case manager. Having a case manager would also assist the Accused in developing witness and evidentiary summaries in advance of testimony so that the Prosecution can admit facts it does not dispute, as well as prepare for targeted cross examination, thus saving court time.

Preparation of witnesses is another issue relevant to the discussion. While Mr. Kay advised the Court that Mr. Milosevic must have adequate time to meet and prepare each witness before they testify, Mr. Nice retorted that in some jurisdictions preparation of witnesses is not done at all for fear of corrupting their testimony. He suggested that, at least for some witnesses, the Accused’s associates can meet and prepare them, leaving Mr. Milosevic to do the in-court examination. The Prosecutor revealed that “by no means is it the case that every witness on this side is prepared in full or at all.” He added, however, that it is usually, though not always the case.

While the Court adjourned to deliberate before making a ruling, it did provide some immediate guidance to the Accused about the parameters his case must fit within. He will be allowed the same time as the prosecution was given in direct and re-direct examination, with an adjustment for the abbreviated testimony of 92bis witnesses (evidence is in the form of a written statement or transcript from another trial). While no recent statistics are available to the author, from observation it appears Milosevic has taken more time in cross examination during the Prosecution’s case than the Prosecution has taken in presenting its evidence. While the Court also said the Prosecution would be allowed the same amount of time Mr. Milosevic took in his cross examination, it seems highly unlikely the Prosecution will take it. A considerable portion of the Accused’s cross examination is repetitive and irrelevant. The Prosecution, as professionals, can be expected to know when to question and when to sit down and pass. If not, the Court will surely remind them, with far less patience than it showed Mr. Milosevic.

The Chamber also advised Mr. Milosevic he may call the same number of witnesses the Prosecution calls in its case (likely between 250 and 300). The rules require that parties submit a proposed witness list to the pretrial judge (in this case the Trial Chamber has taken that role) including a summary of facts for each, estimated time they will take and indication of whether they will testify in person or under Rule 92bis. A party is not free to call any witness it desires. The court’s approval is required to assure the witness is expected to have information relevant to the charges. A court will make its decision on the witness list at a pre-defense conference.

When asked if he had any response to the Prosecution’s arguments, Mr. Milosevic exploded. “The only thing I wish to add, Mr. May, is that what the prosecution has said is absurd. With all the machinations and services at their disposal they feel they are more or less on equal footing to me. I have already told you that I do not recognize this Court so this is not a trial.” Judge May cut him off before he could finish, noting the Court has heard all this before.

While it is impossible to say with assurance when the trial will end, today’s hearing makes guessing a little more educated – if only a little. The prosecution is expected to complete its case in December, followed by winter recess and whatever break the Court decides is sufficient for defense preparation. Based on judicial comments at the hearing, the trial should resume in early to mid-spring 2004. By its completion, the prosecution case will have taken the better part of 22 months, including substantial recesses for Milosevic’s illnesses (which can be expected to continue and possibly increase), but also including excessive cross examination time. Conservatively allowing for the same amount of time, i.e. 22 months, the defense should rest its case by the end of 2005, followed by the Prosecution’s rebuttal evidence, rejoinder evidence by the Accused and any additional evidence the Trial Chamber orders to be presented, such as witnesses the parties have not called who the Court would like to hear. Finally, the parties will make closing arguments to the Court and submit final trial briefs (written summary of and argument on the evidence and relevant law). The Court will then adjourn to consider this massive amount of evidence for several months before rendering its judgment. This takes us to 2006. Once the judgment is rendered, either or both parties may appeal some or all of it. Welcome to 2007, a time we can only imagine.