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Milosevic's Defense Lawyers Given Time to Prepare Case - 2004-09-21

Just two weeks into his defense case, the trial of former Yugoslav leader Slobodan Milosevic was adjourned again, this time to give his court-appointed defense lawyers time to prepare their case. It won't be easy. Not only does Mr. Milosevic not recognize them, he refuses to even talk to his attorneys. Lauren Comiteau reports from The Hague on the defense of Slobodan Milosevic, his right to a fair trial, and the integrity of the court itself.

Steven Kay: "Can you tell the court how many people you had working under you in your region of Kosovo Polje?"

Captain Keith: "Yes I can. My team consisted of myself and eight other verifiers. They were from a variety of nations..."

Retired Canadian Captain Roland Keith testifies as a defense witness at the trial of Slobodan Milosevic. He was only the third witness called by the defense, the only one who Slobodan Milosevic's reluctant lawyer says he could get to come to The Hague last week.

Scores of other potential witnesses have told court officials they will not testify, to protest the court's imposition of a defense lawyer on the ailing former leader. Despite the captain's agreement with Mr. Milosevic that he was fighting a legitimate terrorist war in Kosovo, Mr. Milosevic refused to question him, calling the examination by his own court-appointed lawyer "completely senseless."

Milosevic: "Mr. Robinson, I'm asking that [you] return me my right to defend myself. This examination is senseless."

Robinson: "I cut you off again. We made an order assigning counsel?"

An annoyed Judge Robinson told Mr. Milosevic he wouldn't tolerate any more speech-making. A little while later, the judge expanded his criticism of the former leader.

"The time for playing games is gone. This is not a playing ground. This is a different arena," he said. "And your conduct, I have to say, borders on being petulant and puerile. I expect a more mature approach from you with regard to the conduct of the proceedings, Mr. Milosevic."

If this trial is proving anything, it may be that heads of state, even former ones, are a hard group to try. They're used to calling the shots, to speaking for themselves, to getting their way. From the start of his trial, Mr. Milosevic has insisted on representing himself. But after a dozen health-related interruptions in his trial and a medical report this summer showing his heart problems and high blood pressure are chronic and recurring, judges decided to impose counsel on him. Mr. Milosevic, who refuses to recognize the court, also refuses to recognize his lawyers.

Legal expert Judith Armatta of the non-profit Coalition for International Justice, says that now, it's nothing short of war in the courtroom.

"So what they're at war about is that essential issue: is it going to be able to operate like a court or will it operate according to Milosevic's needs and wants?" she asked. "Basically, he wants a platform, he wants to do this according to his wishes and by his rules and not the court's."

And for a long time, says Ms. Armatta, the court let him. It bent over backwards, she adds, to accommodate the former leader, giving him special treatment. But Ms. Armatta says after two-and-a-half years in court, the judges have finally realized that Mr. Milosevic has no intention of mounting anything resembling a legal defense to the 66 counts of war crimes he is charged with.

"Mr. Milosevic has never said he was defending himself," she added. "He continues to say I don't recognize this Tribunal, I'll continue to take whatever opportunity is given to me as my platform to make my case to the world. And that's what he's doing. And the court, taking itself seriously as a legitimate institution, has to say no, this is not your platform for that. Yes, you have right to defend yourself, but you need to put forth a legitimate defense, and if you won't do it, then we'll have an attorney do it for you."

One of those attorneys is Steven Kay. Formerly a so-called friend of the court, appointed by judges to make sure Mr. Milosevic got a fair trial, Mr. Kay is now in the unenviable position of trying to defend a man who refuses to share information about witnesses or defense strategy with him and who won't even talk to him.

One of the first things Mr. Kay did after judges appointed him to represent Mr. Milosevic was to appeal his own appointment. He has argued in court that Mr. Milosevic does have the right to defend himself, even if he dies trying.

"At the moment, he's not cooperating in any way or availing himself of the opportunity to question," he said. "So at the moment, we have the worst possible of all worlds. And his case, it could be said, it is said, is not being put."

Not so, says legal expert Judith Armatta. She points out that the right to defend oneself is not absolute. The goal of the court is a fair trial, and if someone, Mr. Milosevic or some future leader perhaps, is obstructing justice through his defense, than his right to defend himself must be limited. In the end, says Ms. Armatta, it's Mr. Milosevic's choice.

"He can essentially take the stand that he does not want a fair trial," said Ms. Arnatta. "That's up to him. I think the court will still do what judges do, which is to weigh the evidence. A defendant doesn't have to go forward at all and put anything on. It's up to the state, the prosecution, to prove its charges. So the prosecution has put its case on and the court could look at that at this point and weigh the evidence and say, ok, you don't want to put on anything against that, we'll judge whether they've proved their charges. That's possible. And if that's the kind of trial Mr. Milosevic, the only thing he will accept, then that's what he'll get."

Judges say his trial will still be fair. They point out they've given him the opportunity to appoint his own lawyers and the chance to question witnesses after Mr. Kay is finished with them. If Mr. Milosevic fails to grasp the opportunities to participate in his own defense, said Judge Robinson, then no one can say there was unfairness.

But Mr. Milosevic, who insists he won't serve as Mr. Kay's assistant, is saying just that, along with some 265 of his potential witnesses who have suddenly said they will not appear in court. Mr. Milosevic insists he hasn't told them not to come, but the language of many of them, including some high-ranking politicians and former ambassadors from countries like the United States, echoes Mr. Milosevic's own. Some have called his trial "political" or a "Stalinist show trial" and they say they won't testify until Mr. Milosevic is allowed to question them.

Prosecutor Geoffrey Nice says that is exactly the problem.

"We have a rational, reasonable court facing an irrational and unreasonable accused," said Mr. Nice. "So the argument is, since the irrational, unreasonable accused will not budge, the reasonable, rational court should be the one that makes a move. The reality is that this accused has defied and continues to defy this court and indeed now encourages his witnesses to do so."

Many court observers say that Slobodan Milosevic's tactics are nothing new. They are the same ones he used while he was in power. Because defense lawyers have appealed their appointment, the matter is now out of this trial chamber's hands. A ruling on that is expected before the Milosevic trial resumes again in mid-October.

In the meantime, judges have reminded Mr. Kay that he can apply to have witnesses subpoenaed. They also reminded him of other court powers yet to be tapped: if Mr. Milosevic's legal advisors, men who aren't his official lawyers, but who have been recognized by the court and given privileged access to Mr. Milosevic, are obstructing him, he can apply for orders to get them to turn over evidence and witness lists or possibly face contempt charges.

Mr. Milosevic's legal advisors have signed agreements with the court pledging to be bound by its rules, regulations, and orders. The real showdown may be yet to come.