October 19 Commission Session #2: Rule 703 Redux

Prosecutor Clay Trivett opens his argument regarding AE36 with a list.  On it are Presidents Obama and Bush, Joe Biden and Senator Graham.  If the defense got what they wanted, Trivett says, all of these men would be here waiting to testify as witnesses.  That’s an absurd outome, which would arise from the defense’s view of Rule 703.  We are here, continues the prosecutor, to ask whether the current Rule 703 procedure is, in fact, comparable to the rules used in Article III courts.  It is comparable, in Trivett’s view, in no small part because “comparable” does not mean “identical.” He adds that Rule 703, despite the defense’s claims, satisfies both Section 949j and the Constitution’s Fifth and Sixth Amendments.  And the prosecutor is careful to add that there’s no need to reach those constitutional questions, if Judge Pohl finds that Rule 703 comports with Section 949j of the MCA—which it does. Explaining why, Trivett collapses the issue before the court into two parts.  Part one is documentary evidence.  Before he goes too far, Judge Pohl asks about Trivett’s implicit, second part: isn’t this dispute really about prior notice of witness testimony?  It is, Trivett acknowledges, but in providing prior notice to the prosecution of its intent to seek an expert witness, the defense doesn’t have to reveal anything substantive; the notice is de minimis, as Trivett reads the relevant language.  True, the Convening Authority receives more information than the prosecution does; but the government doesn’t get a preview of the expert’s planned testimony.  He adds that, in exceptional circumstances, the Convening Authority can consider expert requests ex parte, with no notice to prosecutors at all.  Okay, Judge Pohl says: your point is that, de minimis notice aside, the Rule 703 procedure is “comparable,” as far as experts go?  Yes, Trivett says. Then what about fact witnesses?  The prosecutor cites the rule, which requires defense lawyers to provide a synopsis of such witnesses’ testimony before going forward.  The court pushes Trivett: how much must the synopsis contain?  It is enough if the prosecution can discern what the witness will say, and why the witness’ statement will be material, according to the prosecutor.  The defense doesn’t need to supply a dissertation, or outline its thought processes or strategies.  We don’t want any undue advantages, Trivett argues; we just want to follow the rule, which calls for a synopsis.  Okay, then why read the rule one way for experts, and another for fact witness, the court asks.  There’s no case law on that, the prosecutor concedes, but nevertheless emphasizes his good faith interpretation of the rule, based on the requirement of comparability. Judge Pohl asks again about experts de minimis notice; can the defense simply tell the prosecution, “we’re going to the Convening Authority to ask for an expert witness,” without naming that person?  Trivett seems to agree, while at the same noting that Judge Pohl can countermand the Convening Authority’s decision to grant or deny a request.       James Connell III rises in reply argument, his opening having concluded yesterday.  Expert witnesses are on the court’s mind.  Judge Pohl summarizes the prosecution’s position as to these: de minimis  notice means that defense counsel must tell the prosecution only “we want funds for an unnamed expert witness.” Does that satisfy Connell?  Partially, he says.  The issue goes to whether the Convening Authority agrees to consider the defense’s witness request ex parte. If there’s any risk that the Convening Authority won’t, then the defense may keep needed detail out of its expert request, lest that information find its way into the prosecution’s hands.  Judge Pohl is confused: the government seems to say that de minimis notice is required, period.  If that’s true, then there’s no need to talk about ex parte discussion at all, right?  Connell ultimately agrees. So much for experts; Connell moves next to fact witnesses.  An ex parte process should apply to these witnesses, too, he says.  The parties make ex parte communications in the Rule 505 context regarding classified material all the time; why not, Connell asks, do the same with respect to fact witnesses?  The question arises because of the synopsis of witness testimony that is currently required by military commission rules.  The court thinks the issue is not the synopsis, but timing.  He thus refers to federal procedures as described by Connell yesterday.  Under those, if a witness comes to civilian court and disclaims any knowledge, then the witness will excluded on relevancy grounds.  Is that late hour the time for a threshold determination, in commission cases, about the propriety of the witness’s testimony?  No, he says.  The lawyer’s proposed solution involves a much earlier moment.  When he first elects to obtain a fact witness, Connell plans to ask the court, on an ex parte basis, to evaluate the relevance and necessity of the witness’s testimony.  We move to a discussion about Connell’s sought remedy.  Connell agrees that Judge Pohl could construe Rule 703 so as to comply with Section 949j---by crafting the ex parte procedure the lawyer described earlier. Connell returns to his seat as Cheryl Bormann gets up from hers, and adds her two cents to the discussion.  The first has to do with fact witnesses: the prosecution doesn’t have to notify the Convening Authority of its intentions in most instances, because most off its experts are funded by other executive branch agencies.  And federal court standards for experts are vastly more liberal than courts martial standards---and those are what matters for Rule 703.  The “opportunity” to obtain witnesses is what must be comparable, not merely the “process.”  Congress’s word choice, Bormann urges, should be taken seriously.  James Harrington, Ramzi Binalshibh’s attorney, stands and objects to the prosecution’s role as “gatekeeper,” as far as the relevance of witnesses goes.  Judge Pohl wants to know: would an ex parte, no-prosecution-notice-as-to-the-substance-of-a-witness-request procedure satisfy Harrington?  Not entirely, as Harrington doesn’t think he should have to do anything that the prosecution doesn’t have to, in seeking witness testimony.  Then there’s Major Derek Poteet, who notes that the ex parte practice is new; his learned of it only recently. Judge Pohl sums up, with Trivett at the podium.  There seems to be agreement, broadly, as to experts.  Not so as to fact witnesses; what about Harrington’s view, that defense attorneys should be able to take their fact witness applications straight to the court?  Could the statute and rules be read that way?  No, says Trivett.  The reason: the Convening Authority procedure is indistinguishable from courts martial procedure.  He adds that the synopsis is critical, but not demanding. There’s a bit more between the court and the lawyers before the AE36 seems to draw to a close. CDR Walter Ruiz rises and notes that a classified issue might well arise this afternoon---apparently, a classified document could be implicated during the questioning of a witness, Captain Welsh.  Prosecutor Jeffrey Groharing recommends that the court hear unclassified testimony from Captain Welsh, while preserving the option of a classified session as needed.  Groharing anticipates that the bulk of Welsh’s testimony will not implicate secret materials.  The parties bat the secret-stuff-now-or-later issue back and forth, and elect to punt entirely: we’ll proceed on a different schedule, and address AE10 after lunch.  And, because the accused are not in the house, today’s meeting will last longer than the usually-scheduled stop time of 16:00. We thus break for lunch.  Will there be time enough to visit the Fort Meade Burger King?