4/22 Session #4: Chain of Custody Now, Chain of Custody Later

In AE207, the government has asked for a pre-trial hearing regarding on various evidence. CDR Andrea Lockhart has in mind 167 pieces of physical evidence seized from or near the U.S.S. Cole, immediately after the attack on the boat.  It seems defense attorneys plan to object to the chain of custody for all 167; accordingly, the prosecution has come to the commission for relief.  The military judge determines admissibility, argues Lockhart; there’s no need for the members to hear the chain of custody litigation, and its earlier resolution would benefit prosecution and defense alike.  When asked, the prosecutor notes that the prosecution is interested not merely in chain of custody; it also has asked the commission to determine relevance regarding certain of the 167 pieces, in advance.  That second part troubles Judge Pohl a bit, from a redundancy standpoint; he notes that the witnesses in question will have to testify before the members, at trial, no matter what they might or might not say at a pre-trial hearing.  Lockhart answers that the government could live with a pre-trial hearing on chain of custody only, thus preserving relevance issues for trial.  Her aim is to give all parties notice, ahead of time, of evidence that will go before the members.

CDR Brian Mizer speaks on Al-Nashiri’s behalf, and asks the court not to streamline an already truncated process.  The time and place for chain of custody determinations, and for relevance determinations, is before the members, he says.  Sure, some pre-trial litigation takes place ordinarily, in federal courts---but this case is anything but ordinary.  Instead it is a capital case concerning events that took place ages ago, in Yemen.  The court wants to know: why drag the chain of custody and relevance issues out, before the members?  Because the issues will be significant for the case, answers Mizer.  Wait: wouldn't a parade of inadmissible evidence potentially harm Mizer's team?  The prosecution's approach would keep such a display away from the members’ eyes entirely.  The defense lawyer once more expresses a preference for litigation at trial, subject to any needed limiting instructions.  He’s keen to put the case’s extraordinary nature on display for the military jurors.  Mizer explains: one chain of custody witness, FBI Agent Donald Sachtlaben, has since been quite publicly convicted of a felony, for example; another witness is the President of Yemen himself.   Highlighting such stuff can only help us, he seems to say.  He winds up.

There’s no reason not to do this pre-trial, says Lockhart in reply.  And there’s no “President of Yemen” issue here, either; all the evidence at issue concerns U.S. personnel only here, she argues---mostly FBI agents.  Some such folks have spoken to the defense, says Lockhart, but not Sachtlaben--who isn’t on the prosecution’s witness list.  She returns to counsel table.

Miser leaves counsel table and returns to the podium, and reports that only once in his career has he convinced an FBI agent to speak to him.  That was at Hamdan’s trial---and the agent in question explained that he would be shunned, as a consequence of conferring with Mizer.  So it's not quite right for Lockhart to suggest that Mizer and company have a free ability to speak to the FBI, at will. The lawyer also takes issue with Lockhart’s insistence that only U.S. personnel are in play here; the Yemeni government, after all, helped to dredge the waters surrounding the Cole. The members could determine that the Yemenis had a motivation different than the FBI, Mizer says.

He winds up; we take a brief recess.