5/28 Session #3: Members Versus Judges; Continuing Discovery Obligations

Action resumes at the Expeditionary Legal Complex, Courtroom Two.  Army Col. James Pohl, the military judge, calls the proceedings once more to order. The defense, in AE267B, makes a due process argument: basic fairness insists upon Al-Nashiri being permitted to choose between a trial by military commission members, or by the military judge sitting alone. That’s fundamental stuff according to Navy CDR Brian Mizer.  He cites the Singer case.  This, he says, acknowledges no general right to a bench trial, true---but nevertheless recognizes that very possibility, where prejudice or passion or public sentiment might preclude a fair trial before a panel of military officers.  Well, Mizer says, that's exactly where we are today; it is hard to imagine a case more likely to trigger prejudice than this one, for nearly everyone in the Navy recalls where he or she was on the date of the 2000 Cole attack. Mizer sure does.  (He adds that voir dire indeed revealed some prejudice in Hamdan, the only truly contested case---the lawyer discounts Al-Bahlul---yet tried by a commission.) The lawyer next adds a word or two about Toth---which noted some distinctions between panels of military personnel and lay juries.  Laypersons, said the Toth court, are better suited to resolve a case fairly. Consequently, if no civilian venire is on offer, then a judge-only trial would be the next best option.  Judge Pohl is puzzled---why not then ask for a civilian panel?  Mizer says the defense has done that already.  But in any event, if Mizer has to choose between an untenured judicial officer, and a military panel potentially compromised by prejudice, then Mizer says he would opt for the former. To be clear, the lawyer isn’t making that call just yet.  Rather, Mizer is keen to establish and preserve his client’s capability, come trial time, to assess the temperament of the called members, and to opt for a bench trial if needed.  That will make the difference, in the end, between victor’s justice and genuine justice, argues Mizer. And yet Mizer’s position contravenes capital jurisprudence, rejoins prosecutor Lt. Bryan Davis.  The prevailing thought in the relevant cases is, instead, that juries--- not judges---are better entrusted with life-or-death calls.  That’s reflected in the Military Commissions Act, which also requires trial before a 12-member panel of military officers.  Get rid of the members, the prosecutor claims, and you get rid of jurisdiction under the statute, too.  Another problem: the Singer case, which Mizer cited, in fact cuts against Al-Nashiri and supports the government, not the other way around.  Other rulings cited by the defense, says Davis, date from the 1970’s and thus have been overtaken by events---including big developments in death penalty law.  Those developments include (again) an emphasis on the necessity of juror factfinding in capital cases.  (Only one state, Montana, conducts death trials without jurors present.)  A final note: defense counsel always can suss out prejudice through challenges for cause and voir dire.  That’s worked just fine in other commissions---despite Mizer’s suggestion to the contrary. Mizer turns Davis’s precedents back on him: jurors might well be better suited to death trials than judges, under law.  Fine.  But this case concerns a military panel, not a jury, thus Mizer’s emphasis on Toth.  The defense lawyer would be pleased to have his case heard before a true civilian jury---but again, that option isn’t open to his client.  A few words more, and AE267 is submitted. That takes us to AE270, in which (as we learn from Al-Nashiri attorney Air Force Capt. Daphne Jackson) the defense challenges the prosecution’s belated explanations for producing certain discovery recently, rather than earlier.  (Affirmative discovery was due by a date certain; in a prior ruling, Judge Pohl had instructed the government thereafter to issue notices, whenever it produced subsequent discovery to the defense.)  The lawyer asks the military judge to hold the prosecution in violation of its obligations, and to fashion an appropriate remedy---especially since a lot of recently-produced discovery apparently has been in the prosecution’s hands for a long time.  Some documents are statements of the accused that have been in government hands since 2008, Jackson says; ditto photos of the crime scene, taken within days of the Cole attack. The court: so what do you want?  A better explanation? Yes, among other things, is the lawyer’s essential answer. She adds that the government takes a crabbed view of its possession, for purposes of discovery: trial counsel seem to think that, say, FBI and JTF-GTMO documents are not yet in prosecutors’ “possession,” because the prosecutors cannot themselves control the material.  Well, not so, when the accused’s statements are concerned; prosecutors already are obligated to seek out and turn over mitigating material.  Why are we only getting mitigating statements from Al-Nashiri, and the like, only now---more than a decade afterwards? Why the reluctance to get critical defense information over to Al-Nashiri’s lawyers quickly?  Without this foot-dragging, this case could have been tried a long time ago. Jackson asks the court to grant AE270. Speaking for the prosecution, Maj. Christopher Ruge says his side has complied fully, both with court orders and its general discovery obligations.  He adds that continuing discovery is a work in progress, by definition; prosecutors are constantly working with agencies like the FBI, to process material as it comes in and turn it over as appropriate.  And the devil’s in the details here, too: the defense long has had the crime scene photos described by Jackson, thanks to prosecutors' efforts.  Lately, though, Ruge and company obtained shaper copies of the very same photos and passed the better-resolution pictures to Al-Nashiri’s lawyers.  No lack of discovery there at all.  Ruge adds that Jackson’s sought relief---a declaration that all subsequent discovery has been inadequate---is wildly overbroad, and doesn’t fit up with any actual prejudice to Al-Nashiri.  Small wonder, he argues, for Al-Nashiri hasn’t suffered any. A ruling on discovery obligations is absolutely necessary, now, in Jackson’s view.  The idea here is to insist that the government explain what it has and hasn’t looked for---that way, Jackson and company can understand why certain discovery has come to them late.  She’s tired of hearing the government proclaim full compliance with its affirmative discovery obligations.  Well, we know that’s not true, given the tardy production; its time for prosecutors to explain what’s going on. Ruge with two quick points: the statements of the accused, which Jackson mentioned, go to conditions of confinement---not to the allegations in the case.  The lawyer separately stresses that the prosecution always distinguishes between The Government, writ large, and the prosecution itself; the latter may not always know what the former has.  He sits, and argument on the motion concludes.