4/25 Motion Hearing #3: Charge Multiplication & Jury Consultants

After CDR Lockhart lays out the parties' agreed upon schedule for the rest of the afternoon session, the court begins with AE 244, a defense motion to dismiss numerous charges as multiplicitous of other charges. Maj. Danels starts off for the defense, explaining that the U.S.S. Cole charges of murder by perfidy, attempted murder by perfidy, caused injury by perfidy, and conspiracy to commit murder by perfidy are "pile-on" charges to the charges of perfidy and terrorism. These "exaggerate criminality" and "add nothing to the allegations of perfidy or terrorism." Because this is a capital case, Maj. Danels also notes that the multiplication of charges is "highly prejudicial . . . and skews things in favor of death." In response, Brig. Gen. Martins lays out the prosecution's position: The claim of unreasonable multiplication of charges is not meant to prevent the prosecutor from charging and proving the many ways that a single event may be a crime. In fact, given the number of victims in this case and the expansiveness of the plot, the government believes its list of nine charges is quite concise. The court next hears brief arguments on AE 245, a substantially similar motion for multiplication of charges for the attack on the M/V Limburg, before turning to AE 260A, a defense motion to compel the production of witnesses to support the defense's underlying motion---AE 260---that it be allowed to have a jury consultant. Learned Counsel Kammen explains that the defense would like to present multiple witnesses, or at least one Dr. Jeffrey Frederick, to explain to the court why jury consultants are so vital to the fairness of Al-Nashiri's trial. After the defense explains the unique contribution that each of the witnesses would provide in support of a jury consultant for the defense team, Judge Pohl turns to Lt. Davis for the prosecution to articulate why the government opposes the underlying motion. Lt. Davis provides the test for provision of a jury consultant to the defense: The defense must explain why the expert is necessary, what his or her contribution to the defense will be, and why the defense cannot undertake the case without that expert. The defense team is "an experienced team, a savvy team, a team that has learned counsel," says Lt. Davis, and so there is no need here for a jury consultant. In a rare move for this court, Judge Pohl grants the underlying motion from the bench, compelling the production of a jury consultant for the defense. In turn, he denies AE 260A as moot. The court enters closed session for the remainder of the afternoon.