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Krajisnik Trial Fiasco Spotlights Questionable Defense Practices

For the past three years, Momcilo Krajisnik, former president of the Bosnian Serb Republic, has been living in a cell in the ICTY's detention facility in The Hague awaiting trial for seven counts of crimes against humanity, war crimes and genocide during the war in Bosnia-Herzegovina. Due to start May 12, 2003, the trial was abruptly derailed at the last minute when the Tribunal learned that lead counsel Deyan Brashich had been suspended from the practice of law for one year by the state of New York. Attorneys who appear before the Tribunal must be members in good standing of their domestic bar associations. (Directive on Assignment of Defense Council, Article 14 (A) (ii))

On April 1, 2003, the New York State Supreme Court decided to suspend Brashich for professional misconduct and charging an illegal or excessive fee in connection with his representation of a widow in litigation over the estate of her deceased husband. It chose suspension over a recommended censure in light of the fact that Mr. Brashich had been censured in seven prior disciplinary actions. While it appears Mr. Brashich will appeal the suspension, he has stipulated (agreed under oath) to the fact that he did charge an excessive fee.

Whatever happens in that matter, Mr. Brashich is unable to represent Krajisnik in the foreseeable future, if at all. Though he has been directed, at least temporarily, to provide consultation to whoever takes over as lead counsel, Mr. Brashich's attorneys have advised him not to give legal advice or appear to act as an attorney until the New York court clarifies whether he may do so.

That creates a dilemma for Mr. Brashich. He owes a duty to his client, Mr. Krajisnik, and to the Tribunal, which has the power to hold him in contempt if he puts his interest over that of his client and declines to act as consultant to a new lead counsel. However, if he follows the ICTY directive, the New York court could possibly continue the suspension longer than one year or take further disciplinary action against him for violating its order.
Mr. Brashich informed the Trial Chamber he was to appear in the New York court on May 15, to seek a precise clarification of what he may and may not do. In the meantime, he will have to decide how much, if any, “advice” to give an anxious Krajisnik trying to sort out options which will allow him to proceed to trial as soon as possible, but in a way that does not jeopardize his defense.

After three years since the Accused's arrest, both Krajisnik and the Trial Chamber are anxious for the trial to begin as soon as possible. With the loss of lead counsel, Krajisnik is left with several options, as described by a representative of the Registrar who is responsible for the assignment of counsel. 1. Co-counsel Nikola Kostich can take over. As Judge Orie pointed out, Kostic has billed the Tribunal for 2400 hours preparation time in the pretrial stage alone. He should be quite familiar with the case. However, there seems some hesitation on Krajisnik’s part to accept Kostich in this role. 2. Mr. Kostich or Mr. Neskovic, another member of the defense team, could take over as lead counsel temporarily until another lead counsel is prepared to take over. While Mr. Neskovic has spent 4683 hours investigating the case in the field, he advised the Chambers that he had no training in common law trial practice. 3. An entirely new lead counsel could be brought in on a temporary basis, assisted by Mr. Kostich and Mr. Neskovic. The Registry representative stressed that under any of the three options, Mr. Brashich must be retained as a legal consultant given his intimate knowledge of the case and trial strategy. The New York State Supreme Court may yet bar Brashich from acting in this capacity, however.

Any of these options should allow the trial to proceed no later than mid-June. A wholly reconstituted defense team with an entirely new lead counsel would delay the start of the trial until September, following the summer recess.

The Trial Chamber asked the Accused to consider the options and express his preference to the Registrar within the next week to ten days, if possible. Judge Alphons Orie stressed that the sooner Krajisnik can express a preference the more likely the Registrar will take it into consideration. The Justice took great care in explaining to Mr. Krajisnik the details of the ICTY's regime for assignment of counsel. The Tribunal Statute gives the Registrar the power to qualify and appoint counsel where an Accused is unable to pay for one of his own choosing. According to Judge Orie, the case law indicates that the Registrar is under an obligation to consult the Accused about his preferences before assigning counsel. However, there is a split in the decisions over whether the Registrar should follow the Accused's preference unless there is a good reason not to, or whether the Registrar is only obliged to consider his preferences, but is not bound by them. Judge Orie made plain that he adheres to the latter view and he so advised Mr. Krajisnik, reminding him, “Your preference until now for Mr. Brashich has resulted in the disastrous situation we’re in.”

Judge Orie also addressed the defense counsel and the Accused about the inordinate number of hours they've spent preparing the case at the pretrial stage. When he asked Brashich to estimate the number of hours spent and Brashich answered 15,000 to 20,000 including investigators' time, Judge Orie, with access to forms filed by the defense team, corrected him, 'You could add 50% to come closer to the actual figure.' Judge Orie also asked for an estimate of what has been spent on the defense to date, excluding costs and travel. Stressing the 'magnitude' of the case and the three years spent preparing, Brashich said he estimated it has cost $900,000 to $1,000,000 so far. Again, Judge Orie corrected him. 'You could add 50% and you might be closer.'

If Judge Orie compared this to his days as defense counsel in the Dusko Tadic case, when he essentially worked pro bono, he could not have felt very sympathetic to this defense team's position. Not only have they spent nearly a million and a half dollars and tens of thousands of hours in the pretrial phase of this case, but -- at the last minute -- they are not prepared to go forward due in large part to lead counsel's charging an excessive fee in another case back home. That there is some hesitation about co-counsel taking over for lead counsel, given that he's spent 2400 hours preparing the case, is nearly as disturbing.

Nor can one feel particularly sympathetic to the Accused, Momcilo Krajisnik, whose declared inability to pay for his own defense seems inexplicable to many longtime Balkan watchers. And, if he's unwilling for co-counsel to step into Brashich's shoes, one might wonder why co-counsel was on the team for three years -- and getting paid for 2400 hours of work.

The Tribunal has established rules to address both concerns – potential overcharging by defense counsel and false claims of inability to pay for counsel. If an accused believes he cannot afford to pay for defense counsel, he must complete a “declaration of means” on a form provided by the Registry and produce evidence to support it. It’s then up to the Registry to investigate and make a decision. Needless to say, it requires considerable investigative resources to find assets which have intentionally been hidden. Only in one case has the Tribunal revoked payment for defense counsel after finding the accused had sufficient assets to pay his own way.

As for overcharging, Tribunal rules establish a fee schedule for payment of counsel ($110 per hour for lead counsel with 20 or more years of experience; $80 per hour for all co-counsel) and legal assistants or investigators (from 15 to 25 euro per hour depending on experience). In addition, the Registrar establishes the maximum amount to be paid for each phase of each case, and authorizes all costs, which must be necessary and reasonable, in advance.

There are indications that these rules have not produced the desired result in all cases and that the Tribunal, including the Registrar, is considering additional methods of cost control. The state of the Krajisnik defense may provide further impetus.

Any significant delay in this one case produces a ripple effect, touching other cases and accused waiting trial, as well as prosecution, judicial and courtroom schedules. If the Krajisnik trial cannot go forward before September, the effect will be significant. The Tribunal has a projected end date (2008 for trials), at the same time there are a crush of accused awaiting trial and an increase in indictees being apprehended and turned over.

Whatever preference Mr. Krajisnik expresses for his future representation, the Registrar will act quickly. It is up to Mr. Brashich to solve his personal dilemma and take the consequences. That he didn't anticipate being suspended by the New York court after reprimands in seven prior cases shows a cavalier attitude that he can no longer maintain. After all, justice is about responsibility.