8/4 Session #2: A New Judge, Part Two

We continue with Learned Counsel Richard Kammen’s questioning of Air Force Col. Vance Spath, the case’s new and recently detailed military judge. The defense has asked Judge Spath to recuse himself, given the involvement of another of Al-Nashiri’s attorneys, CDR Brian Mizer, in the ongoing appeal of the high profile Witt court martial---in which Judge Spath served as prosecutor, and which involved allegations of plain error arising from prosecutorial misconduct. A Senior Airman, Witt was tried ten years ago, responds Judge Spath; the appeals have been going on for a while.  Since then, Judge Spath says he hasn’t paid much attention to Witt.  But he adds that he is used to and not offended by criticism of his past performance.  All this is, to the military judge, beside the point: “The Witt case outcome has no bearing for me,” he says. The prospect of real or perceived bias, either against Mizer or his client, arising from the Witt prosecution, likewise doesn’t worry Judge Spath “at all.” A doubtful Kammen protests mildly: Really? What if Mizer ultimately prevails in his claim, that Judge Spath went way over the line in prosecuting Witt, and then gets Witt’s conviction overturned? The military judge rejoins that he’s been reversed many a time, and had dinner with the appeals judges who did the reversing--and without spiking the latter’s food to boot.  Same here, the court says. People second-guess Judge Spath’s rulings all the time, and it doesn’t bother him in the least---or skew his decisionmaking.  “That’s the price of doing business,” in the court’s view. Now Kammen queries Judge Spath about an article penned about Witt, under Spath’s name and those of two co-prosecutors; Judge Spath confesses that, as the senior trial counsel, he did only such work as appropriate to that role---thus suggesting that the article’s contents were prepared by his subordinates more so than by him.  More Witt-flavored questions come now, these about moral choice and bias. Kammen cites the possible impact of emotional evidence, including that of victim suffering, on the members’ possible sentencing decisions. The same might also hold for the military judge, couldn’t it? Judge Spath here, as before, hangs his hat on the rules given to him---which he pledges to follow to the hilt. As for Witt’s significance, Judge Spath again proclaims that he won’t be thinking about that case while handling this one, and that he will be fair to Mizer, in fact and in appearance. Kammen accepts all this, while doubting that a judge or attorney could easily discount others’ claims of fundamental misconduct, while forging ahead as usual. We pivot to Judge Spath’s past experience as a defense lawyer and the implications of that experience, if any, for Al-Nashiri. The court says he’s seen prosecutorial misconduct while practicing as defense counsel, and further tells Kammen that, as a judge in a court martial, his general role is more than simply “calling balls and strikes.”  Its important to Judge Spath that the process be fair in fact, and perceived as such; with that said, he is also keen to let the parties conduct their trial.  Fine, but what about ambiguous situations, as when party fails to object to the introduction of evidence in violation of procedural rules?  The court is a bit vague here. Judge Spath says his approach is fact bound, and that he considers the experience of the attorneys, and the right at issue, before opting to intervene or to stay mum. A fundamental principle, like the Right to Remain Silent, might call for unilateral intervention, he explains; a simple evidentiary rule might not. Again, the touchstone is fairness.  Apropos, how aggressive will Judge Spath be, in pushing for prosecution compliance with discovery obligations?  The court says he doesn’t do advisory opinions, but that---you guessed it---he’ll follow the applicable law. Al-Nashiri’s Learned Counsel next characterizes Judge Pohl’s view of the court's authority as limited---as precluding, for example, the power to bring witnesses to GTMO, to push back on government assertions about the facts surrounding current detentions, and so on.  What is Judge Spath’s view?  The latter says he doesn’t have one, having not given the matter any thought.  This matters to Kammen, given the secrecy and transparency issues surrounding the commissions. Here the court reiterates that he is constrained to follow the law; if that much leads him to “look behind the curtain"---presumably he means "knock down executive claims of secrecy"---then Judge Spath says he’s not uncomfortable. Kammen asks about the peacetime-wartime distinction, as Judge Spath experienced it during his year-long stint at the Judge Advocate General’s school in 2000. (This mattes for Al-Nashiri’s case, in which he’s been accused of a war crimes---despite the United States’ declarations that, at the time of the Cole attack, the United States essentially was not at war.)  So far as he knows, Judge Spath thinks the instruction at the JAG school was more or less the same then as it would be now, give or take some modest security enhancements after 9/11. Kammen has only a few more questions after this; the court answers them.  Before completing his examination, Kammen wonders: why did Judge Spath go to law school?  The court doesn’t know, but suspects it has something to do with working in criminal law and doing trials.  He also doesn’t really know why he joined the military, give or take the military’s affording him an opportunity to work as a trial attorney. This tees up a ruling on the defense motion for recusal, which is now ripe.  Kammen recites the reasons why Judge Spath ought to step aside---chiefly the latter's prosecution role in Witt, and CDR Mizer's ongoing work on the Witt appeal. Prosecutor Lt. Bryan Davis rises and bats away the recusal request, citing the lengthy voir dire in which court and counsel have engaged all morning.  Coupled with the strong presumption of impartiality, this weighs against the defense motion, which Davis asks Judge Spath to reject. The prosecutor adds that any Witt conflict must remain hypothetical for the time being: CDR Mizer, after all, has temporarily departed this case and has yet to return; he also has not entered an appearance in Witt.  A few words more and Davis returns to counsel table.  Kammen rises in reply only briefly, in order to emphasize that Mizer's Air Force employment and work on Witt are both continuing---and in particular, that Mizer has been assisting on issues arising from prosecutorial misconduct in Witt.  And, Kammen stresses, the threat of waiver obligated him and his crew to raise a possible conflict at the earliest opportunity.  Lastly Learned Counsel says he has no reason to think Mizer won't be coming back.  Kammen seems to say: this is no imaginary conflict. The issue needs resolving now, not later. We won't wait long for resolution, apparently.  From the bench, Judge Spath hints that one might come right the hourlong lunch break, which commences now.