When he came to the second packet, Kevin gasped. It was entitled:
“Motion to Disqualify Attorney Kevin Anderson for Conflict of Interest.”
CHAPTER 7
In the prosecution’s motion, Bradford Stone claimed Kevin should be disqualified because he had a pending application to be a prosecutor. He contended that Kevin’s desire to work as a prosecutor would prevent him from providing a vigorous defense to an accused. Several cases from the United States and other jurisdictions, as well as law review articles, were cited in support of the principle that a lawyer has a conflict of interest when he has applied to work for the other side.
Stone also attached Kevin’s application and cover letter, in which he had expressed his desire to prosecute war criminals at the Tribunal. Stone even found an article about Kevin in the Santa Rosa newspaper, quoting him as saying that he looked forward to helping “bring to justice those responsible for the ethnic cleansing in Bosnia.”
Kevin held his head in his hands. It was so true that he had wanted to be a prosecutor – heck, he’d even been hired as one only to have it taken away. Nonetheless, that did not prevent him from defending Draga, or any client, to the best of his ability.
So far, he had provided a vigorous defense, and in so doing he’d alienated everyone in the system – including his own client. Kevin no longer had any illusions of working as a prosecutor at the Tribunal. He had to admit, though, that there was an appearance of a conflict of interest when a defense lawyer had his own personal agenda to curry favor with the prosecutor. He had certainly felt that conflict when representing Nihudian.
Kevin looked over the response to his motion for an identity hearing. It was very powerful. Stone attached news media articles with photographs of Draga in his Black Dragon uniform. It was clearly the same man sitting in the Tribunal courtroom. Stone labeled Kevin’s motion as “frivolous.”
When Ellen arrived home, Kevin gave no hint of his latest problems at the Tribunal.
“Dad, some of my friends are going down to the Langstraat this afternoon on their bikes. Can I go with them?”
The Langstraat was the pedestrian mall in the center of Wassenaar where lots of little shops were located. Kevin had noticed many kids Ellen’s age, or younger, bicycling to the Langstraat without their parents. While he liked the idea of giving Ellen the independence that Dutch parents gave their children, Kevin was concerned. After all, she was only eleven, and a stranger in a foreign land.
“Let’s wait and ask Mommy on that one. She should be home any minute.”
When Diane arrived, Ellen ran outside and popped the question.
Diane came in the house and said to Kevin, “I don’t know about her going so far on a bike without an adult.”
“But, Mom, it’s less than a mile away,” Ellen pleaded. “It’s not much further than school. And four girls are going with me.”
Diane looked at Kevin. “What do you think?”
“I guess it would be okay. Everyone else seems to let their kids do it.”
“See, it’s okay with Daddy. Please, Mom, please.”
Ellen knew how to play one parent off the other.
“I guess so,” Diane finally said.
“All right!” As Ellen ran up to hug and kiss her mother, she winked at her father.
In fifteen minutes, Ellen’s friends rode up on their bicycles and Ellen was off on her shiny new purple bike with a sing-song bell attached to the handlebars. Diane had given her some spending money, and a phone card to use if she needed to call home.
After Ellen left, Diane and Kevin talked about the wisdom of their decision.
“That’s one of the nice things about living in Holland,” Kevin said. “It seems a lot safer here.”
A few minutes later the phone rang. Diane and Kevin both jumped, thinking it might be Ellen.
Kevin got to the phone first. “Hello.”
“Is this Kevin Anderson?” asked a man with a heavy accent.
“Yes.”
“This is Toma Lanko from the Bosnia News Service. Do you have a minute?”
Kevin signaled to Diane that it was not Ellen. “Sure.”
“Do you have any comment on the prosecutor’s motion to disqualify you?”
Kevin was taken by surprise. He had just gotten the motion himself a few hours earlier. “I’m sorry, but I don’t think it’s appropriate for me to be arguing motions outside of court. I’ll have plenty to say about it at the hearing.”’
He found himself speaking with more bravado than he felt.
“I’ve spoken with Draga on the telephone this afternoon,” the reporter went on. “Here is what he said: ‘They sent a prosecutor to defend me? This is just more proof that this court is a farce. It is obvious I will receive no justice here.’ Do you have any comment on that, Mr. Anderson?”
Kevin was stung by the words of his client. “I’m sorry, but I can’t get into a public debate with my client. I’m sure you can understand.”
“I understand, but without your response, my story is not going to make you look very good.”
“You have a job to do. I appreciate you giving me the chance to comment. But I just can’t go there.”
“As you wish. Have a nice day.”
So far, it had been anything but a nice day.
The next morning, Kevin switched on his computer and located the web site for the Bosnia News Service. He saw the headline: Draga’s Lawyer Exposed as Prosecutor. The story reported that the Tribunal had assigned Draga a former prosecutor who had never defended anyone in his life. It quoted Kevin’s letter and the Santa Rosa newspaper article in which he had said he wanted to help bring war criminals to justice. The article also contained Draga’s quote. A spokesman for the prosecutor’s office agreed that Kevin’s appointment had been inappropriate but said that there was no deliberate attempt to saddle Draga with a lawyer who would not look after his interests.
“After all,” the prosecution spokesman was quoted as saying, “we were the one who brought this conflict of interest to the court’s attention.” The article concluded by noting that Kevin had refused to comment.
Kevin knew that he had to confront this problem right away and not wait a month until court resumed. He typed a letter to the prosecutor, formally withdrawing his job application. He no longer wanted to work for those people. The practical side of him knew that there was no chance they would hire him now anyway. Kevin rode his bike to the Tribunal and dropped off the letter.
Then, he rode over to the prison, where he was led into an interview room. When Draga arrived, Kevin walked up to him and looked him straight in the eye. “I have no conflict of interest. I will fight for you as hard as I know how.”
Draga looked away.
“Before I came here,” Kevin continued, “I did want to prosecute. I thought they were the good guys. But since I’ve been here I’ve seen how they abuse their power. If I get the opportunity, I’m going to jump up and down on the defense side of the scales and do my best to see that it balances out.”
Draga said nothing. Both men were still standing less than a foot from each other, with Draga towering over Kevin.
“If you don’t want me to be your lawyer,” Kevin said, “you can just tell the Court on September 4th and the judge will be happy to assign you someone else.”
Draga walked over to the door, opened it, and left. He had again said nothing.
The meeting had lasted all of thirty seconds.
On Monday, September 4th, Kevin donned his robe and entered Courtroom 1 shortly before court was scheduled to start. Vladimir Krasnic took his seat at the defense table with Kevin, but selected the chair farthest away.
Judge Davidson strode to the bench like a man with a purpose.
“We have several matters to take up at this hearing,” he said in an authoritative voice after the case was called. He looked down at the leather book where he made his notes. “I see we have a motion filed by Mr. Anderson, one by Mr. Krasnic, and one by
the prosecution. We will also complete Mr. Zaric’s arraignment today.”
“We will first take up Mr. Anderson’s Motion for an Identity Hearing. Mr. Anderson, do you have one shred of evidence to offer that the man seated in this courtroom is not the same Dragoljub Zaric as accused in the indictment?”
Kevin rose quickly. “No, Your Honor.”
“That’s what I thought. Your motion is frivolous, counsel, and a waste of the Court’s time. It is denied.”
“Your Honor,” said Kevin, who remained standing. “Four years ago, an innocent man named Goran Lasic spent over three months in custody because this Court had no procedure in place to hold an identity hearing. Perhaps you will find, after a hearing, that the accused in this case is the man charged in this indictment. But unless you rule that an accused is entitled to such a hearing, you are permitting a system to exist which is fundamentally unjust.”
“Your motion is denied, counsel,” Judge Davidson said loudly. “Now sit down!”
Kevin obeyed. The hearing had not started off well. Kevin wondered why Judge Davidson had not begun with the disqualification issue.
“We shall now arraign Mr. Zaric,” the judge ordered. “The Court, having found beyond a reasonable doubt that the accused is the same Dragoljub Zaric as charged in the indictment, now calls upon the accused to plead.” Turning to Draga, Judge Davidson asked, “What is your plea, Mr. Zaric, guilty or not guilty?”
Draga said nothing.
“Mr. Anderson,” the judge said, not missing a beat, “as counsel of record for the accused, do you request that a not guilty plea be entered on his behalf?”
“Yes, Your Honor. Without waiving any rights or defenses, including that of the jurisdiction of this court, I ask that not guilty pleas be entered as to each count of the indictment.”
“Not guilty pleas will be entered.”
Kevin suddenly realized what Judge Davidson was up to. He’s a smart old coot. The judge had wanted Draga to have an attorney to enter his plea for him. The judge had deftly avoided any possible roadblocks to that end result. If he had disqualified Kevin at the outset, the arraignment might have had to be postponed again.
Judge Davidson looked down at the leather book in front of him. He appeared to be working off a script, and was moving smoothly through his agenda.
“Now that the accused has been duly and properly arraigned, we shall turn to the prosecution’s motion to disqualify Mr. Anderson.” The judge turned to the prosecution table. “Does the prosecution have anything to add?”
“No, Your Honor,” a confident Bradford Stone responded.
“Mr. Anderson, this is a very serious allegation. It brings dishonor to you and to this court. What do you have to say for yourself?”
Kevin rose to his feet. “There is no conflict of interest, Your Honor. I have unequivocally withdrawn my application to work for the prosecution. I have no personal stake in this case, and no interest contrary to that of the accused.”
Judge Davidson’s face reddened to a bright pink. “Mr. Anderson, you have used extraordinarily bad judgment, and shown a lack of respect for this Court. We can’t waste our time with inexperienced lawyers making frivolous motions and violating the canons of ethics. The Motion to Disqualify is granted.”
Kevin felt about two inches tall. He was unsure whether he should get up and leave. Since no one told him to go, he remained in his seat, trying to maintain a poker face. He wanted to disappear.
Judge Davidson turned to Vladimir Krasnic. “That brings us to your motion, Mr. Krasnic.”
“Yes, Your Honor.” Krasnic displayed the confidence of a man whose competition had just been eliminated.
“I would like to grant your motion. I know you to be a very competent counsel and one who understands and obeys the rules of this Court.”
Krasnic smiled, and bowed slightly to the judge.
“But I need to have some indication from Mr. Zaric that he wishes to choose you as his assigned counsel. I will state on the record that by doing so, he will not be waiving any challenges he has to the jurisdiction of this Court, or any other matter. But our rules require that the accused choose an assigned counsel from our list. Otherwise, the Tribunal staff makes the assignment.”
“May I have a moment with Mr. Zaric?”
“Of course.”
Kevin watched as Krasnic walked over to Draga and spoke to him. Kevin couldn’t bear to look at anyone else in the courtroom. He didn’t dare see who was out in the visitors’ gallery.
“I’m sorry, Your Honor,” Krasnic said when he returned to the podium, “I cannot convince Mr. Zaric to address the Court.”
“Very well, Mr. Krasnic. I will direct the staff to assign new counsel for Mr. Zaric.”
Krasnic looked disappointed. Then he brightened. “Excuse me, Your Honor, might I make a suggestion that I believe will accommodate all interests?”
“Yes, what is it?”
“Perhaps Mr. Zaric could be provided with the list of the assigned counsel. The court could take a short recess while Mr. Zaric circles the name on the list that he chooses as his counsel. That way he would not have to address the Court, yet he can make his preference known.”
“That is a very unusual procedure,” Judge Davidson grumbled.
“It complies with the Court’s rules. Perhaps it will allow Mr. Zaric to save some face, Your Honor.” Krasnic gave an indulgent smile to the judge.
“Very well. Mr. Zaric, the court will furnish you with a list of all of the lawyers eligible to be assigned a case in this court. You shall indicate your preference by circling one name. If you do not do so, your assigned counsel will be chosen for you.”
“Thank you, Your Honor,” Krasnic responded gratefully.
“Court is in recess for fifteen minutes.”
Kevin rose as Judge Davidson left the courtroom. Kevin looked over at Draga, who was being fawned over by Krasnic. Draga never looked in Kevin’s direction. Kevin was a nobody in the courtroom, and he knew it. He wanted out as quickly as possible, and yet he hated the thought of going home and telling Ellen he was unemployed again and to say goodbye to all her new friends because they would be heading back to California immediately.
As Draga left the room carrying the list of lawyers and a pencil, Krasnic walked over to the prosecutor’s table. Kevin heard him arranging for the discovery materials to be delivered to his office. Kevin wished that court would be over, so that he could just leave. He was totally humiliated.
After precisely fifteen minutes, Judge Davidson returned to the bench. He looked over at Draga’s chair. It was empty. “Where is the accused?”
“One moment, Judge,” replied the guard stationed inside the door. The guard spoke into his hand-held radio. In a moment, the door opened and Draga was led to his seat.
“The usher will retrieve the papers from the accused,” Judge Davidson said.
The black-robed usher approached Draga and took the papers from him. He delivered them back to the judge.
Judge Davidson flipped through the papers. “I see that you have circled a name, Mr. Zaric.” He held the paper up closer to his eyes and donned his glasses.
“Kevin Anderson?”
Kevin was shocked at the mention of his name.
Krasnic’s head went back as if hit in the jaw.
In disbelief, Judge Davidson looked at the paper again.
Kevin looked over at Draga; Draga broke out into a big grin.
“You two deserve each other,” Judge Davidson muttered. “Mr. Anderson, you are reinstated as counsel of record for Mr. Zaric. Court is adjourned.”
CHAPTER 8
“I’m glad you’re still Draga’s lawyer, Daddy,” Ellen said after Kevin told her and Diane what had happened in court.
“Why?” he asked his daughter.
“Because those bullies pick on everyone.”
“Any other reason?” he smiled.
“Oh Daddy, you know. I’m not ready to go back home.”
“
So why did you let Draga choose you as his lawyer?” Diane asked.
“It wasn’t my choice. It was his. I just hope he’ll talk to me now.”
“Let’s have a party for Daddy,” Ellen exclaimed. “I’ll make a cake!”
“You have homework to do, young lady,” Diane said too sternly.
“Party pooper!” Ellen walked into the dining room and sat back down at the table where her homework was spread out. Kevin had tried to make her do her homework at her desk on the third floor, but Ellen hated being banished to her room. She wanted to be where the action was, so she could monitor and contribute to every conversation. After a few attempts, Kevin had given up. Now a threat to send her to the third floor to finish her homework was enough to get Ellen back on task.
At about 8 p.m., the doorbell rang. Ellen raced to the door and opened it. Soon she was back in the dining room. “It’s for you, Dad.”
Kevin went to the front door. He was surprised to see Zoran Vacinovic, from the Serbian Embassy, and another man standing in the doorway.
“Mr. Vacinovic, come in.”
Vacinovic and the other man entered. “I was in the area so I decided to drop by rather than call tomorrow. I have someone I want you to meet. I hope you don’t mind.”
“I don’t mind.”
“This is Mihajlo Golic. He is your client’s brother-in-law.”
Kevin shook the man’s hand. Golic was huge – at least 6-foot-4 – and had a handshake like a vise. Kevin led the men into his living room. He introduced them to Diane and Ellen, and then took them upstairs to his office.
“Your daughter is beautiful,” Golic remarked.
“Thank you. She’s a great kid.”
Vacinovic got down to business. “Mr. Golic is a former Belgrade police detective. He wants to help his brother-in-law. I thought perhaps you could use him as an investigator now that it looks like you’re going to be representing Mr. Zaric.”
Kevin looked over at Golic. His appearance was very professional. He was dressed in a shirt and tie with a gray tweed sports coat. He looked to be in his early forties, with an Arnold Schwarzenegger physique.
The TRIBUNAL Page 8