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

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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-
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