Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 - Page 28

Kosovo 28 major setback.” Under Kosovo and European law, the admissibility of Zogaj’s evidence depend- ed on whether the defense attorneys had an adequate opportunity to question him before he died. If Zogaj’s statements and diary were admissible, then the trial would go forward. If not, Limaj would have to be declared not guilty because the prosecu- tor could not prove the case without this evidence. Zogaj was the only person who could actually name names about what happened in the field that fateful day and who gave the orders. We conducted a lengthy hearing on this legal issue at the opening stage of the tri- al. The courtroom was packed with the de- fendants’ supporters and heavily armed se- curity officers, and the street outside was swarming with police officers wearing riot gear and carrying automatic rifles. Be- cause of the tension surrounding this case, the UK judge and I were required to travel back and forth to the courthouse in an ar- mored vehicle. I also had to have a bullet proof and bomb proof door installed in my apartment. Fortunately, there were never any security incidents. Limaj was represented by a prestigious, if not imperious, British barrister from Lon- don. He and the other defense attorneys argued vehemently that the questioning had been inadequate. After the hearing, the three of us on the trial panel were un- able to come to a unanimous agreement. The UK judge and the local judge conclud- ed that the questioning had been inade- quate. However, I believed that Zogaj had been adequately questioned and that the trial should go forward. Since I was outvoted, the defendants were then acquitted, much to the jubila- tion of their supporters, and to the aston- ishment of the prosecutor, who was livid. After the verdict was announced orally in court, Limaj and the others were mobbed outside the courthouse by throngs of well- wishers and TV cameras. Subsequently, I wrote a 20 page dissenting opinion. The prosecutor then appealed the ver- dict to the Kosovo Supreme Court which issued its decision in November 2012. (The court of appeals was not established until 2013.) The court overturned the acquit- tal, and in so doing adopted virtually all of arguments I had made in my dissenting opinion, and even incorporated some of my reasoning verbatim. The Court then or- dered a retrial. The case was then retried before a differ- ent panel of judges after I had returned to the U.S. The verdict was again not guilty of all charges. The panel determined that even with the diary and statements of Zogaj, there was not enough credible evi- dence to support a conviction. The pros- ecutor appealed, but the court of appeals upheld the acquittal last spring. I am not aware whether a further appeal has been filed. The Medicus Case On November 4, 2008, a young Turkish man named Yilmaz Altun collapsed at the Pristina Airport prior to boarding a flight to Istanbul. He was examined by a doc- tor who observed a fresh wound on his ab- domen. Altun said through an interpret- er that he had had a kidney removed at a medical clinic called Medicus just outside of Pristina, and that the recipient of the kid- ney was still there. The police were notified, and they im- mediately suspected that something was wrong since kidney transplants were not legal in Kosovo except between relatives. They formed a swat team, including inspec- tors from the Ministry of Health, and went immediately to the clinic. They discovered an elderly Israeli man still recovering from a kidney transplant who was obviously not a relative of the young Turk. The police and health inspectors then conducted a thor- ough search of the clinic, and seized med- ications, voluminous medical documents and other evidence for review by forensic experts. Based on the forensic analysis, the EU- LEX prosecutor from Canada filed an in- dictment against seven individuals, alleg- ing trafficking in human organs, organized crime and other serious crimes. The defen- dants included Lutfi Dervishi, a prominent urologist who owned the Medicus Clinic and who was a professor of medicine at Pristina University, and his son Arban Der- vishi, a university graduate in econom- ics who managed the clinic. Also indicted were three anesthesiologists who worked at the clinic, and two high governmental officials, one of whom was from the Minis- try of Health. The trial began in October 2011. I was a member of the panel, along with a Pol- ish judge and a local judge. At the out- set, the American attorney for the lead de- fendant (Lutfi) filed a motion to disqualify the Polish judge on the basis that he had issued an order during the pre-trial phase. As noted, under the rules of criminal proce- dure there was a strict separation between the pre-trial phase and the trial phase, and a judge who acted in a pre-trail capacity could not sit on the trial panel. In fact, the Polish judge had issued a routine pre-trial order extending the time for the prosecu- tion to complete the investigation, but had not otherwise had anything to do with the case. The motion was submitted to the Presi- dent of the Assembly of EULEX Judges for a ruling. He denied the motion on the rea- THE VERMONT BAR JOURNAL • SPRING 2017 soning that the order was insignificant and had no impact on the judge’s ability to be fair and impartial. We welcomed the rul- ing at the time, but would rue the day later. Another issue concerned the validity of the search of the clinic. We heard many witnesses on this issue, and determined that the police acted illegally because they did not obtain either a written or verbal warrant from a judge when they had plenty of time to do so, and because none of the exceptions to the warrant requirement ap- plied, such as exigent circumstances.How- ever, we also determined that the health in- spectors who accompanied the police dur- ing the search did so pursuant to their own statutory authority, and that the evidence they uncovered was admissible. As a prac- tical matter, the police and health inspec- tors searched the clinic together, so the ev- idence was the same. The trial extended off and on for 19 months, and included about 75 witness- es and thousands of pages of documents. 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