10/24 Motions Session #4: Odds and Ends

Remember the possibility, raised earlier in the week, of stipulations regarding Al-Hawsawi’s language capability, during the case’s pre-referral phase?  Ruiz brings the matter up once more, having in mind the defense’s motion to dismiss for defective referral, AE08.  Prosecutor Clay Trivett has disputed Ruiz’s suggestion that Al-Hawsawi could not speak english well enough to communicate with his lawyer---and thus needed, but didn’t get, a cleared translator pre-referral.  So what is the prosecution’s position?  Will we enter the language facility fray, after all, and hear from more witnesses on that issue?

We learn the answer after a brief recess, and some housekeeping discussion.  Trivett tells the court that his side thinks Al-Hawsawi speaks English.  He also doubts the relevance of testimony from Bryan Broyles, the Deputy Chief Defense Counsel and Ruiz’s  intended witness.  Broyles won’t get into language capability, Trivett says, but instead into billing summaries related to translation.  That's irrelevant stuff.  And, he goes on, the court has rejected evidence of billing before, on relevance grounds; the prosecution renews its objection to such evidence now.   For his part, Ruiz concedes that Al-Hawsawi speaks some English, but insists that the question is whether his client could (and can) communicate with counsel on complicated legal matters.  Moreover, the lawyer notes, a prosecution witness has claimed, in a declaration, that the defense was offered and refused translation services during the pre-referral stages.  Thus Ruiz needs his witness, and evidence, to rebut the declaration's inaccurate assertions.  On questioning from the court, defense counsel acknowledges that his witness request may be untimely in some respect, or at least delayed; Ruiz might have to take the error on the chin, he says.  Soon, we get a ruling from the bench: Broyles can testify after all, as to the declaration only, but not to billing or resource issues.

Okay then.  Anything else to discuss, so far as AE08 witnesses?  Yes, says Ruiz: four underlying motions to compel relating to AE08, and another motion regarding statements made by Al-Hawsawi.  One or more have been resolved already---with grants.  But that’s not the end of the story, regarding at least one of the defense-won-on-paper requests.  As for that, Ruiz says that the prosecution will not turn over the sought material (which evidently also bear on the English skills of Ruiz’s client), until Ruiz and company sign the protective order’s Memorandum of Understanding (“MOU”).  There’s classified discovery in play, evidently, and classified discovery only gets turned over once counsel has executed the MOU.  Groharing responds that documents regarding Al-Hawsawi’s language capability were declassified and turned over to Ruiz and crew.  The remaining sought things are, in the prosecution’s view, irrelevant, but classified and thus awaiting counsel’s signing of the MOU.  Some more intricate motion to compel talk follows from Ruiz, on gaps in prior testimony by the former Convening Authority, and the need to call his legal advisor, among other things.  

For its part,  prosecution thinks AE08 witness matters have been litigated thoroughly already, and thinks AE08 ought to be argued and decided. There’s no need to go filling in alleged holes in the Convening Authority’s remarks, Groharing argues, or to fill out the details of what FBI agents discerned from an interview with Al-Hawsawi, so far as concerned the latter’s English language facility.   (Again, the agents’ notes contain nothing material, or even relevant, to the English capability issues, says Groharing. )  The military judge says that he can’t really deny a motion to compel, on the basis of the government’s representation alone.  The prosecutor again, for emphasis: filling out the granular details of the Convening Authority’s actions, pre-referral, just isn’t necessary.  Groharing sits.

Ruiz replies that the FBI agent in question has said that the prosecution provided him with his notes, in preparing to testify about Al-Hawsawi’s language skills.  So how can those notes be other than material, and thus discoverable, as Groharing suggests?  Ruiz is incredulous.  Sure, Ruiz called the witness, not the government; but that doesn’t change Ruiz’s view.  At a minimum, the court ought to see the notes, and make an independent decision about their handing over.