Milosevic's Style Begins to Backfire: Confusing witnesses fail to detract from testimony about Racak massacre

Slobodan Milosevic's theatrical courtroom style has been the focus of extensive press attention since the opening of the Kosovo portion of his trial in February. However, commentators have largely focused on the effects of his style, rather than the actual techniques he employs during his cross-examinations. Yet to report simply that Milosevic overpowers a given witness is to leave unexamined the ways in which a line of questioning can be manipulated to create confusion and anger, especially given that many witnesses in this trial are uneducated - even illiterate - and have no courtroom experience. Confusion and anger can in turn lead to an impression that the witnesses' stories are unconvincing or even untruthful.

Milosevic's mode of questioning is marked by several recurring traits. One is a refusal to accept any detail of a witness's story, no matter how irrelevant to the substance of the crimes charged. Another is a tendency to jump back and forth in time and place as he questions a witness about events, without indicating that he is referring to a different date or geographic location than in the previous question. As a result, some survivor witnesses have become flustered and hesitant in dealing with the barrage of dates, times, numbers and names with which Milosevic assails them. Judge May recently suggested that Milosevic would do well to question witnesses chronologically and by following the outline of their written statements, for the good of both the court and the witnesses. A third trait is Milosevic's willingness to ask questions to which he can't anticipate the answer.

This in turn leads to a fourth trait: his tendency to ignore answers that refute his perception of events. A typical exchange occurred on June 11, during the cross examination of Lutfi Ramadani, a Kosovar Albanian who repeatedly testified that there was no presence of KLA fighters when Serb forces surrounded his village of Krushe e Vogel with tanks, causing the villagers to flee into a nearby forest. After Ramadani testified that there was no KLA presence, Milosevic asked whether there had been a clash between KLA and police forces, whether the KLA fighters had accompanied the villagers into the forest, and whether the KLA fighters had returned to the town when the villagers did. Later, he asked about KLA headquarters in the village, and whether any KLA fighters had been killed the next day when Serbs gathered over 100 village men in a two-room structure and opened fire on them with automatic weapons before setting fire to the dead and wounded. Milosevic's questions did not seem designed to trick Ramadani into admitting the presence of KLA. Rather, it seemed that Milosevic had decided there was KLA presence in the village, and was incapable of formulating any questions that did not reflect that decision.

While these approaches can succeed in intimidating and overpowering individual witnesses, Milosevic's techniques may be starting to backfire as the prosecution calls multiple witnesses, all testifying to the same events. A recent example of such a backfire occurred after the May 31 testimony of Bilall Avdiu, a 54 year old illiterate farmer and a survivor of the January 15, 1999 Racak killings. Avdiu survived the gunning of 29 men by Serb forces in a ravine above the town by falling to the ground and feigning death for five hours. Four other men survived by escaping into the surrounding woods. After an emotional recounting of how the men had been mistreated and ultimately killed, Avdiu added that the assaulters had cut the heart out of a man with a knife and placed it on his chest. Milosevic zeroed in on this detail, eventually eliciting through repeated questioning that Avdiu had not actually seen the mutilation take place, but had found the mutilated body after reviving. The court's attention was captured, and Judge Robinson intervened, asking the witness directly whether he had seen the heart being cut out. Milosevic announced triumphantly that there had been no reports of mutilated bodies from Racak. He went on to question whether Avdiu was sure he had actually seen with his own eyes the men executed around him in the ravine, asking sarcastically whether the witness 'saw' the execution in the same way that he 'saw' the man's heart being cut out. Judge May intervened, but Milosevic's point had been made, and Avdiu's testimony seemed compromised.

Yet Milosevic's reliance on this one detail to call into doubt the entire episode returned to haunt him. Multiple witnesses testified to the same sequence of events leading to the deaths in the ravine, and on June 7, Ian Hendrie - a detective and member of the OSCE Kosovo Verification Mission - took the stand. The prosecution showed Ian Hendrie pictures of horribly disfigured bodies at the Racak site, including two decapitated corpses. One body in the ravine had internal organs splayed over a chest wound, exactly where his heart would have been. Hendrie testified that such mutilation would be consistent with being shot at very close range. Avdiu's testimony was redeemed; with no medical or forensic training, he would seem to have testified honestly to a sight that he was only able to explain in one way. The fact that a witness felt that mutilation was caused by a knife when it was likely caused by automatic gunfire at close range will not ultimately help Milosevic prove that a massacre did not take place.

While he has impressed some observers with his ability to find and draw out (or create) every potential inconsistency in the details of witness testimony, Milosevic may have made a tactical error in attempting to discredit each witness based upon such details. While no one survivor witness can remember every date, see from every angle, or correctly interpret every piece of evidence, each successive witness fleshes out a picture sketched by previous testimony - a picture that will be difficult to erase from the minds of the court and of the public.