10/25 Motions Session #6: When to Talk About When the Case Will Go to Trial

Next is AE175.  It is perhaps the prosecution’s most hotly anticipated item, and for good reason.  The motion asks the military judge to enter the prosecution’s proposed trial scheduling order.  Among other things, the filing seeks a trial date in September 2014.

“A schedule,” says the Chief Prosecutor Mark Martins, can help us all get to closure, faster.  Before he can overview that schedule, the military judge pipes up.  Suppose the two capital cases must be tried simultaneously?  (Judge Pohl makes clear that, in his hypothetical, he won't need to be in two places at the same time; two judges would try Al-Nashiri and the 9/11 case, in that event.)  Martins agrees to account for this going forward, and then summarizes his thinking: legal and discovery motions filed by late December, with argument early in 2014; evidentiary motions filed by late spring, with argument over four weeks in August; and then voir dire in January of 2015.  The latter represents an off-the-cuff adjustment, and departs a bit from the prosecution’s prior filing, Martins says.  The tweak affords more preparation time to the defense.

After a moment’s recess, J. Connell speaks in opposition to Martins’ proposed calendar.  The defense lawyer isn’t really sure whether the government means sincerely to advocate for the dates described in its pleading.  But with that in mind, Connell overviews the state of the case---all the while referring, as is his wont, to a deck of Powerpoint-displayed slides.  Take basic law enforcement discovery: such material is right now being processed.  But it will only be produced, Connell surmises, come early December---the prosecution’s deadline for discovery and law motions.  Connell also has had to push to get his mitts on data-dense financial discovery, too, and his requests for this information haven't even yet been denied---as they must be, in order for Connell to seek help from the court.  By way of context, Connell’s exhibit tells us that his client has 67 discovery requests awaiting a response from prosecutors, for various reasons; only 17 requests thus far have been completely resolved, favorably or unfavorably.   More context: the category of as-yet-unproduced material includes information about pre-Guantanamo confinement and interrogation.  That’s kinda, er, important to the defense.  Ditto client statements made to government personnel, other than those made to the so-called “clean team.”  Connell lastly forecasts a litany of down-the-road legal issues.  Among other things, the parties will have to resolve the possibility of outrageous government conduct, the voluntariness of statements made to the "clean team," and the confrontation of witnesses. There are, he summarizes, a lot of issues on the horizon.

For Bin Attash’s Learned Counsel, Bormann, the filing of legal motions presupposes investigation by counsel. That in turn presupposes finishing up discovery, and in a case far bigger than Moussaoui.  The defendant there was charged in connection with the 9/11 attack, and the information volume was huge---even though he hadn’t “participated” in the CIA’s RDI program, as the accused did in this case.  The unclassified record in Moussaoui also included, among other things, 180,000 FBI 302 reports, and 1200 audio tapes. The classified counterpart likewise comprised 200 compact discs, 1400 documents and 29 two-inch binders full of CIPA summaries.  (Judge Pohl observes that, unlike Bormann, counsel signed a Memorandum of Understanding in Moussaoui and thus availed themselves of classified discovery; Bormann counters that the prosecution in Moussaoui didn’t seek to “classify” thoughts and feelings of the defendant, as it has in this case.)  The foregoing does not even touch on travel and other investigative needs, which Bormann has described in written filings.  Finally, like Connell, Bormann notes a number of motions to compel, at least one of which resulted from months and months of delay by the Convening Authority.  The government, for its part, also has obstructed, by denying plainly legitimate discovery requests.  She sums up: it is hard to believe Martins believes that evidentiary motions could be argued four months from now.

Other defense counsel sing from the same hymnal as Connell and Bormann.  James Harrington, for example, says his client’s case calls for travel to seventeen countries, and underscores the vast disparity between (big) prosecution resources and (little) defense resources.  Adding one or two years to the schedule, he says, might get us in the ballpark---but the prosecution's timetable is a nonstarter.  Likewise David Nevin: if you really think we ought to have pre-trial motions submitted in December, before discovery is completed, as Martins seems to say, then the effect would be an ineffective assistance of counsel claim later on.  And Nevin has won habeas cases on that basis.  A judge eager to shore up against such a claim, Nevin argues, would grant the defense significant leeway, and ensure a level playing field.  But it is the hurried-up cases that tend to “come back,” as he puts it, with ineffective assistance problems.  In Nevin’s view, we are a good ways off from even talking about when we might try what the prosecution has called the biggest criminal case in United States history.

Return serve to Martins, who makes a couple of points, beginning with one about discovery requests.  Many of these touch on ready-to-produce material, says the Chief Prosecutor, and most counsel haven’t signed on to the Memorandum of Understanding.  (Connell has done so, but he also has joined in an effort to abate the case by means of another motion regarding motions to reconsider determinations regarding classified discovery.)  His implication: hurry up the MOU, and you hurry up the case.  Additionally, this isn’t about being ready for trial, or at all interfering with the effective assistance of counsel.  No, Martins says he proposes merely to put a mark on the calendar, and to use that to speed things along.  The court expresses some sympathy for the no-classified-discovery-because-of-the-MOU problem; Martins seizes on this, suggesting that some court intervention might well improve the pace.  On the other hand, the court also says he doesn't want to hear about unanswered defnese discovery requests, or de facto denials after long delays.  Judge Pohl simply won’t blame defense counsel for not filing a motion to compel, in cases where the defense’s requests haven’t been answered at all.   A few more details follow: the Chief Prosecutor distinguishes Moussaoui, as cited by Bormann.  This case involves a different theory of liability, according to the Chief Prosecutor.  Martins sits.

So much for AE175.  Onward.