Nashiri Motions Hearing #19: On Expended Resources

All discovery, all the time.  We move now to AE53, the defense’s motion for the discovery of information about the resources expended by the government in its investigation.   Kammen is up first, and he portrays the motion as being about transparency, reliability, and looking ahead - in the event that there should be a penalty phase for Al-Nashiri.  The Convening Authority denied the defense’s request, says the lawyer, and we do not know its reasons for doing so.   We know cost is not an issue for the commission, though it may be one for the Convening Authority.  And in any case, the Convening Authority said there has not been an adequate showing of necessity to obtain information about the prosecution’s total expended resources.But there are reasons to get at that, Kammen explains.  One way to establish necessity is to ask how much your opponent has spent on a case.  Of course it is not a tit-for-tat, but it is helpful.  Kammen hypothesizes: if the United States has spent approximately 40 man-years investigating in Yemen between 2000 and 2002, and 30 additional such years between 2000 to time of the charges’ referral, well, that is an instructive fact.  Or suppose the government used the assistance of foreign agents not only in Yemen (and Kammen says he knows the government did so) but also in other countries, then that too would tell us something. Kammen next mentions transparency.  At the end of the day, the public is interested in this, he says.  The public would be interested in knowing, for example, that the United States spent $100 million investigating Al-Nashiri between 2000 and 2008, when charges were first referred in this case; even more so if the defense’s total budget was less than $1 million.  People might well take the disparity as evidence of an unfair system. Okay, says Judge Pohl.  Is that a legal reason to grant your motion?  Or is that just an argument about the public’s judgment?  It is legal, answers Kammen - who Judge Pohl instructs to return to his prior argument, regarding the penalty phase.  Judge Pohl: does resource information bear on your mitigation case?  The answer is yes, and in two ways.  For one, Kammen explains, evidence of residual doubt may persuade the members not to kill a defendant who they earlier found guilty.  That is certainly the way resource evidence is used in state and federal proceedings, according to Kammen. Judge Pohl says that the investigation occupied twelve years: we are not just focused on what happened with the Cole, but also with the two other incidents described in the charge sheet.  The court wants to make sure it understands just what Kammen wants.  As Judge Pohl sees it, Kammen seeks a reasonably accurate, ballpark figure of how much the government spent during its investigation of the case, both in dollar and man-hour terms.   To this Kammen adds a request for some basic geographic and demographic data.  And that is it.  He sits down. Lockhart stands up, and acknowledges the government’s broad discovery obligations.  But, she says, the information sought in the defense’s motion does not come within the scope of those obligations.   Question from the judge: does the sought information actually exist?  That, it turns out, is Lockhart’s other point. She is unaware of any compilation along the lines that Kammen described.  She points out, though, that the constituent parts of a compilation do exist, and already have been provided to the defense - individual snippets of data about x agents who interviewed y witnesses on z topics.   Judge Pohl again: in a death penalty case, isn’t this an issue of mitigating evidence? The accused, he adds, wants to establish residual doubt.  Lockhart parries a bit, and says the defense has not referred to any cases to support its view, though they certainly can argue resource disparity generally, during the penalty phase.  When questioned by the court, Lockhart concedes that no cases bar the court from granting Kammen’s motion. Next the prosecutor emphasizes that the government does not have a duty to create documents or compilations - to fashion discovery outright.  No federal court has ever required the government to do that.  And again, the prosecutors have reviewed the documents in their possession, and concluded that the sought information here just doesn’t exist.  When and if the defendant can show otherwise, and establish relevance - only then, Lockhart says, could we have a different story. Rebuttal by Kammen begins with him suggesting that, while the government may not have yet found any compilations like those sought in his motion, it certainly has not established that such compilations are nowhere to be found.  But that’s the reality he confronts.  As he explains, the commission does not give subpoena powers to the defense.  And that makes the situation totally unique, from Kammen’s standpoint: this is a death case, in which the offense happened 12 years ago, the charges were brought only recently, and a sizeable chunk of information is located abroad.  He hasn’t seen a case like this before. On the other hand, Al-Nashiri’s case is also like any other in which a capital defendant seeks discovery.  According to Kammen, Brady was a death penalty case dealing with mitigation evidence.  The Supreme Court there reversed a decision in which the prosecution had failed to produce such evidence.  The resource information here, according to Kammen, is also mitigating evidence and therefore must be produced under perhaps the best-known Supreme Court case involving a prosecutor’s obligations.  At a minimum, Kammen goes on, the court should order government to request the sought information from relevant agencies. Judge Pohl is catching on.  Assume I find that the discovery sought here is relevant, he says.  Which agencies would you want my order directed to?  The government has no obligation to create discovery for you; and the information may also be out there, just in some uncompiled, and thus non-retrievable form.  Or the government could say that there isn’t even that much.  Could we still get to mitigation in some other way?  Maybe, Judge Pohl suggests, the defense and prosecution could give ballpark estimates of their respective resource numbers, based on what they’ve seen in the evidence.  Kammen says he would be inclined to accept that approach, provided the government would be bound by its good faith estimate during later parts of the case. A switch of lawyers at the podium, and Lockhart commences her rebuttal.  It is interrupted almost as soon as it begins.  Judge Pohl puts his earlier question, which he had asked Kammen, to the government’s lawyer.  Assume I find that the defense has sought relevant information here.  This is a death penalty case, and a disparity of resources expended by the two sides might well show mitigation, he says.  And we obviously cannot wait until the penalty phase to resolve the issue.  Could the prosecution generate the sort of good faith estimate I mentioned to Kammen? Lockhart seeks clarification and gets it: we’re talking about dollars and man-hours expended since the beginning of the Cole investigation, along with information about the investigation’s geographical scope.  Continuing, the court says there will be three options, given that, as is clear, he agrees that the resource allocation evidence could show mitigation.  Option one, Judge Pohl says, is that the relevant agencies search for and and turn over a compilation along the lines described earlier by Kammen.  Failing that, there’s option two, in which the government provides its “good faith estimate.”  But if that is not possible - and the government should indicate its response in a written filing - then we’ll have to explore an as-yet undefined option three.  The defense’s motion thus is granted, subject to revisitation after the government submits its response. With that, Judge Pohl calls a brief recess, during which the parties will discuss scheduling.  We’ll get to the depositions motion after that. **** After the recess, things wind up in a hurry. Judge Pohl announces that he has held a conference with counsel, mostly about scheduling issues. The next motions hearing, he says, will be on July 17, with motions due on June 15. He announces that the one outstanding issue, which deals with the government’s motion for depositions in Yemen was discussed at the conference and has been resolved. He asks the parties if there’s anything more they want to talk about. Lt. Cmdr. Stephen Reyes declares for the defense that regretfully, this wouldn’t be a commission hearing without some argument about legal mail. And he goes on to describe the incident that took place in March, in which Judge Pohl’s legal mail order was not honored--in what was apparently a quickly-resolved misunderstanding. He half-heartedly tries to use it to get Judge Pohl to revisit aspects of his mail order, but Judge Pohl isn’t interested. If there’s a recurrent problem, the judge tells him, bring it up to me. A problem arose. It was arrested. So far, it looks like a one-time incident. That’s not enough to change the entire procedure again. If this is a one-time thing and resolved very quickly, it doesn’t bother me. Judge Pohl closes the hearing noting that he hopes he doesn’t have to hear about legal mail any more.