October 19 Commission Session #3: Wherein We Confer About Conferences

In AE10, the defense has asked for verbatim transcriptions of the Rule 802 conferences---which, as things stand now, are not recorded in that fashion.  On behalf of Walid Bin Attash, Cheryl Bormann comes to the podium and explains the reasons why a word-for-word transcript must be made, and added to the record. Reason one is the case’s extraordinary importance.  Reason two: the legitimacy questions surrounding the commission system.  Were we in federal court---a forum universally recognized as legitimate---there would be less of a need to take down all proceedings, including scheduling conferences.  Transparency, the prosecution’s watchword, is also paramount, Bormann argues.  In order to ensure it, the public and the parties have a right to know what happens in the Rule 802 sessions.  She adds context: like many others, Bormann has followed Al-Nashiri’s case, at times from Fort Meade.  When Rule 802 matters arise, though, Bormann and other observers see and hear nothing; when the screen again comes alive, the defense motion is granted, a complete surprise based upon what Bormann had seen earlier.  She adds that the court isn’t steeped in capital cases.  But Bormann is, and emphasizes the impossibility of tracking all the lawyers’ positions in this death case without making an official record.  Also remember: everything was recorded during the IMT at Nuremburg.  Lastly, there’s efficiency.  There’s no need to revisit, in open court, what was or was not represented during 802 sessions, if the parties have a transcript on hand.  Bormann concludes by noting that Rule 802 in fact contemplates the addition of transcripts to the record. Standing in opposition is Major Joshua Kirk, who rejects the defense’s characterization of Rule 802 sessions.  These are regular and well-established tools, the prosecutor continues, with which military judges---in commission and court martial proceedings---manage their dockets.  And there’s no right to a verbatim transcript of a Rule 802 conference, either.  Under the rules, the military judge summarizes what took place at the Rule 802 chat, and affords each side an opportunity to dispute the court’s account.   Verbatim recording in every instance would undercut the purpose of the conference---which is supposed to be informal.  Don’t forget the burden on court reporters, either.  A few words more, and Kirk is done. Argument on the motion completed, Judge Pohl turns to resolving AE10: he denies it.   There’s no right to a verbatim transcript, he says.  The point of the Rule 802 session is to deal with scheduling and other issues.  The court’s oral ruling leaves a door open though---Judge Pohl says that, practically, court reporters may come to Rule 802 sessions in the future.  So a blanket requirment for verbatim transcription? No.  The option for transcription? Yes.