Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 - Page 25

www.vtbar.org duction of documents, or appoint experts, or order a forensic analysis, or cross-exam- ine witnesses, and so forth. The court also had the authority to directly question the defendants, although they could “defend by silence.” Another significant difference was the absence of precedent; the doctrine of stare decisis did not apply. Each decision by the Supreme Court stood alone, and was not binding on other cases. Plea agreements were also rare in EULEX cases, even though allowed by the proce- dure code. Many European judges were quite skeptical of plea agreements based on their understanding of the American system which they believe is very coercive. The only plea agreement I was able to achieve was in an international drug smug- gling case. It took a fair amount of persua- sion to bring along the two other judges on the panel, as this was not how they usually did business. EULEX prosecutors were generally very competent, and the defense bar was grow- ing stronger as time passed. Indeed, there was a core of excellent defense attorneys, some of whom had training in the U.S. or other western jurisdictions. Occasionally one would attempt to ingratiate him/her- self to me by saying something like, “I have great confidence in you as an American judge, and know you’ll do the right thing.” After concluding a case, the trial panel was required to announce an oral verdict in open court within three days, even in the most difficult cases, then follow up with a written judgment according to a precise template. Failure to follow the template could result in reversal even if the error was merely technical as I would learn. It is also worthy of note, that the pros- ecutor could appeal a verdict of not guilty, and the appellate court could reverse that verdict and enter a conviction, based on its own interpretation of the law and facts (which could be supplemented). This was not uncommon. My First Assignment My first assignment was to the trial court in Prizren for eight months. I arrived by myself, a month or so before Kristina and our dog arrived. As noted, Prizren is an an- cient city on the border with Albania and has a strong Ottoman influence. Many of the buildings reflect Ottoman architecture, like the Turkish baths, and the Muslim faith is much more prominent there than in the capital Pristina. When I officially reported for duty the first day, I was assigned a cell phone, a VW Golf car, a hand held radio, a baseball cap, a helmet, flak jacket and gas mask. The courthouse had recently been reno- vated by USAID as part of its country-wide THE VERMONT BAR JOURNAL • SPRING 2017 courthouse renovation project. However, it remained attached to the regional deten- tion center, and across from the detention center was a small café that employed sev- eral young women. My administrative as- sistant told me that these were the prosti- tutes who would go into the detention cen- ter after dark. I arrived in Prizren at the same time as a judge from Norway, and we joined three other international judges from Poland, Germany and Bulgaria, and various court staff. I recall well what the judge from Bul- garia said to me: “If I have one piece of advice, it’s to lower your expectations.” I would come to understand what he meant. Our arrival created a serious space crunch, so we went to the local presiding judge who managed the courthouse, and asked to use a vacant room on the EULEX corridor. He made various excuses why this space was unavailable. After several fruitless meetings, I did something that I did only once in Kosovo and reluctantly: I played the American card. I said to him, “When you walk into this building you pass by the USAID plaque on the wall which states, ‘A gift from the American people.’ My country paid for the renovation of this building, including your large office and all your nice furniture. As an American I would appreciate it if you would make the vacant space available to us immediately.” We had the space later that day. When a prosecutor in Kosovo began an investigation, the court had to be formal- ly notified, and there were strict time limits for completing the investigation. During this phase, a pre-trial judge was assigned to deal with search warrants, wiretap war- rants, pretrial motions and the like. The pre-trial judge was not permitted to sit on the tria l panel. Defendants could be held in custody for months during the investigation phase and prior to the filing of an indictment. Prose- cutors frequently asked for detention, rath- er than less restrictive measures like bail or house arrest, because defendants could easily flee over the porous border into Al- bania, and because witness tampering and destruction of evidence were a way of life in Kosovo. Detention orders were subject to frequent judicial review every 30 days or so. Criminal cases were initiated by the filing of an indictment which was almost always multi-count and multi-defendant. A typical case could involve as many as ten or more defendants, each represented by up to three attorneys. Indigent defendants qual- ified for free legal services. Trials could last for weeks or months at a time, and manag- ing cases like this was a real challenge. Once the indictment was filed, there was a procedure to review it for legal sufficien- cy by a pre-trial judge, somewhat similar to our 12 (d) motion. Remarkably, however, there was no procedure for suppression of evidence prior to the actual trial, so if there was an issue of the validity of a search, for example, this could not be addressed until the trial itself rather than during a pre-trial stage. This proved to be very inefficient. The actual trial process was not unlike what we’re familiar with in terms of pre- sumption of innocence, burden of proof, examination and cross-examination of witnesses, objections to evidence, right against self-incrimination, closing argu- ments and the like, but there were some significant differences. For example, victims of crime had par- ty status, could be represented by counsel, could question and cross-exam witnesses, and could introduce evidence. The crimi- nal court was also required to award dam- ages to victims of the crime if the evidence was sufficient to make an accurate determi- nation. Also, defendants themselves could question and cross-examine witnesses, could comment on the evidence through- out the trial, and could present their own closing statements. Competent defense attorneys would often limit their clients’ actual participation in the proceedings for obvious reasons. The procedure code also obligated the court to determine the truth rather than simply act as a neutral arbiter. We could call additional witnesses, or order the pro- The Case of Cene Daka One of my first cases in Prizren was the murder case of Cene Daka. On a hot summer night in August 2010, around 11:00 pm, during the Muslim holy month of Ramadan, a notorious loan shark in Prizren, by the name of Hoti, was found shot to death in his office late one eve- ning. The body was discovered by Hoti’s girlfriend. The police and prosecutor were quickly called to the scene. They focused their in- vestigation on a person named Cene Daka who was thought to owe money to Hoti. After several hours of processing the crime scene, the prosecutor on his own author- ity ordered the police to search the resi- dence of Cene Daka, and a squad of heav- ily armed police officers proceeded to his residence. At no time did either the pros- ecutor or the police obtain a written search warrant from a judge nor contact a judge for a verbal search order, as required by Kosovo law. The police banged on the door, and sev- eral minutes later Cene Daka appeared in his underwear as if he had been sleeping. He was a man in his mid-60s. The officers entered his house where they immediately conducted a search. They claimed to dis- cover a gun under the pillow in the bed- 25