4/23 Motion Hearings #5: A Multiplicity of Charges

To close out the unclassified portion of the afternoon session, the court hears argument on AE231-234, all defense motions to dismiss charges for multiplicity. The defense first raises AE231, seeking dismissal of the prosecution's first charge, perfidy, because it is subsumed by the elements of the second charge against Al-Nashiri, murder in violation of the law of war. Maj. Danels explains the defense's position: A multiplicity challenge must show that proving the elements of one charge will necessarily result in conviction for another charge. Because the charge for murder in violation of the law of war requires the government to prove that "the killing was a violation of the law of war . . . by committing an act of perfidy," Al-Nashiri must be guilty of the first charge to be guilty of the second. CDR Lockhart provides the government's theory for bringing charges that seemingly subsume one another: First, the government may provide the jury with multiple similar charges that give the government alternative ways to convict the defendant, so long as there is an understanding that the jury may only find the defendant guilty of one. Second, the crimes are different because of their respective intent requirements---the crime of murder in violation of the law of war requires the intent to kill in relation to an act of perfidy, while the crime of perfidy requires intent to commit the perfidious act. Because the act of perfidy for the former charge may have been committed by someone else, it is possible for the defendant to be convicted for either crime without necessarily being convicted for both. Judge Pohl asks Maj. Danels how the charges can be dismissed as multiplicitous if Al-Nashiri can be guilty of perfidy without being guilty of murder in violation of the law of war. Isn't the prosecution simply providing the jury with options when considering the evidence? Judge Pohl doesn't seem satisfied by the defense's answer and the court moves on to AE232, which would dismiss the charge of attempted murder because it is subsumed by the crime of murder in violation of the law of war. Judge Pohl immediately jumps in to point out that while attempted murder may often be a lesser included offense of murder, in this case there are both victims who died that will fall under the murder charge and victims who did not die that will fall under the attempted murder charge. Maj. Danels notes that the attempted murder charge does not specify to whom it applies, so the defense cannot determine whether it is multiplicitous. CDR Lockhart explains that this is not a multiplicity issue, but one of specificity: If the defense is unclear on the victims referred to in the attempted murder charge, they can file a bill of particulars to request that information. However, the government clarifies that the attempted murder charge is for those sailors aboard the U.S.S. Cole that did not die. AE233 is up next. Maj. Danels wants the court to dismiss the terrorism charge as multiplicitous of the charge for murder in violation of the law of war, because the only difference between the charges is a lesser criminal intent required for terrorism. But after clarifying that the defense does not claim that terrorism is a lesser included offense of murder, Judge Pohl asks under what theory the defense is bringing these multiplicity challenges. Maj. Danels lays out the test: "[T]he only question for multiplication is that in finding an accused guilty of one charge, you necessarily have to find them guilty of another." The defense points out that it's brief includes an "element-by-element comparison" of the charges to show that, while terrorism is not a lesser included offense of murder in violation of the law of war, it is subsumed by that charge. CDR Lockhart disagrees with the defense's approach, explaining that the conventional test for multiplicity is whether the elements of one charge are entirely included in the elements of another charge, even if the latter may have additional elements. Because the terrorism charge and the crime of murder in violation of the law of war have different criminal intent elements, they cannot meet this test. While some of the charges that the defense is challenging may ultimately merge for sentencing once the evidence is presented to the jury. The last unclassified motion of the day is AE234 to dismiss the charge of attack civilians as subsumed by the terrorism charge. Judge Pohl and Maj. Danels work through exactly what the defense means when it says that one charge is subsumed by another. Essentially, where one charge requires elements A, B, and C, and another charge requires elements A, B, C, and D, the former is subsumed by the latter. CDR Lockhart then rises to explain that the charges of attacking civilians and terrorism clearly have different elements. The court recesses to continue with the classified session of Wednesday's hearings.