Nashiri Motions Hearing #10: Some Logistics about Depositions

The day’s final issue is a logistical one. In its motion AE56, the Government asks to take some depositions in Yemen. Judge Pohl has some hesitation here, and says as much. He nevertheless asks for clarity, as he has not yet discerned the defense’s position. Kammen rises to reply. Our skepticism, he says, has to do with two things--first, the government’s vagueness about how quickly these depositions will take place.  What if the defense gets a call from the government, and lacks enough notice to plan for the depositions, or travel? Of course, Kammen said, tomorrow the court will hear argument about resource allocations to the parties; the resolution of that could lessen the problem somewhat. But that won’t help Kammen with his second problem. Apparently, the prosecution suggested, in a telephone call with the defense, that the defense lawyers could take only as many depositions in Yemen as the government had arranged for its side to take. That implied an attempt to limit the defense in an objectionable way, and hinted also at a “domino effect:” will similar moves be forthcoming from the prosecutors, if this one is not stopped here? The court has logistics on its mind. Judge Pohl asks if Kammen’s key issues are logistical--like where the depositions will be, and how much time he will have to prepare. Is that right? Kammen says it is, more or less, but he’s more concerned about the depositions’ use at trial. The issue is not merely logistical, but evidentiary--that is, the admissibility of deposition testimony, in the event that witnesses prove unavailable at trial. Judge Pohl sees his point, even though a witness’s refusal is not the only factor the judge would apply in determining unavailability under the applicable rules. The talk then turns to authority. Can Judge Pohl order a Yemeni to attend a deposition?  Kammen says that he knows the government’s view: which is that the court cannot do so. Judge Pohl asks Kammen to inform the court if he thinks otherwise.  And he reminds the defense lawyer that the prosecution doesn’t determine the maximum number of depositions.  If the defense wishes to take third party depositions in Yemen or elsewhere, then they need only file a motion.   This isn’t entirely satisfactory for Kammen, who notes that the deposition issues are intertwined with others.  Intertwined in a way that they would not be in a . . . typical court.  Judge Pohl notes the lawyer’s choice of words: even you if doubt the system, there are all sorts of remedies available to the commission.  The playing field can be leveled, if need be.  Judge Pohl says he understands the defense’s position now.  He asks the government how much notice it can give to the defense, once arrangements for depositions have been made. Enter Mattivi with his answer, which is: about thirty minutes less than the government gets.  He explains that if the prosecution learns that depositions will be held two months from today, then, no more than thirty minutes later, it will notify the defense.  The prosecutor is visibly frustrated and wants to vent a bit.  We are exercising all good faith to make things happen, he says.  Mattivi notes that the Chief Prosecutor in particular has moved mountains in attempting to arrange the depositions in Yemen.  And, Mattivi goes on, I mentioned no limit on depositions during my telephone call with the defense attorneys; what I said was, let’s do it in an equal capacity. In passing, the prosecutor also disputes the defense’s suggestion that it has been  hampered in its effort to prepare for depositions. According to Mattivi, Kammen and his crew already have all notes of the interviews performed in Yemen during the Cole investigation.  There’s no foot-dragging, in other words, he says. It is instead, as Mattivi puts it, another example of the government's trying to make something work, and the defense refusing to take “yes” for an answer. The court asks about the government’s depositions.  If the defense asks to do depositions separately, at another time, would you object?  Mattivi cannot say, mostly because the issue is complicated. He says he does not know if the prosecution alone can arrange for depositions of Yemeni witnesses.  And if that is unclear, then he certainly cannot say whether the defense will be able to make separate arrangements.  He nevertheless says that the government will ensure equal access to the witnesses that it deposes.  (The logistical complications with the depositions evidently stem from the coordination with diplomatic personnel on the one hand, and with the commission on the other.  Mattivi describes it as chicken-or-the-egg sort of problem.)  Does Mattivi need an order to start the process of arranging the depositions?  No, the process is started he says, and Mattivi is simply trying to keep it moving.  An order is helpful, but not a guarantee. Kammen rises for his final remarks on discovery matters - which in fact will be addressed tomorrow, rather than now.  The trouble, Kammen says, is that the prosecution, despite its claims of “mountain-moving,” will not try to obtain documents from the Yemeni government, despite its obligation to do so.  Kammen ribs the prosecutor a bit on this point: yes, we have some reports of the FBI’s investigation in Yemen, but we have none of the critically important reports of the parallel investigation conducted by the Yemeni government.  The prosecution wishes to boast of the process’s fairness, Kammen says, but while stating - in briefing - that they do not have to obtain the requested Yemeni documents. Again, the question is what Judge Pohl can do.  He asks: can the United States do anything other than ask the Yemenis to turn over the sought materials?  The government can do more, says, Kammen, based on the agreement between the two countries.  The defense lawyer adds that he is stunned that the United States does not possess those materials already, though he accepts the government's representations that it does not. In that case, Judge Pohl says, what authority do they have?  You make it sound like they - or I - can order the Yemenis to comply with the agreement.  On that point, Kammen thinks the commission can enforce the agreement as between law enforcement agencies, by punishing one or both of the parties to the case, as appropriate. There’s a little more banter about the question of admissibility, and an objection from the prosecution: Mattivi wishes to state that the government will honor reasonable timelines, and rejects any contrary suggestion by the defense.  Judge Pohl emphasizes that he will impose remedies as needed if there is any unfairness to either party in the discovery process. Mattivi adds a final note of thanks to Judge Pohl, for trying to resolve this issue to the extent possible before tomorrow’s hearing.  He ends the argument by sounding his now-familiar tune: the defense just can’t take yes for an answer. Judge Pohl asks if there are further matters - and since there are not, the day’s proceedings are adjourned.