June 11 Session #5: A DIVO, No?

On to the discipline of Defense-Initiated Victim/Survivor Outreach, or DIVO (AE107).  Kammen and crew seek funding for two DIVO liaisons.  In prior proceedings,  Judge Pohl asked to hear more about DIVO practice, and the need for DIVO liaisons in this case.  That is something that Professor Jody Madeira of Indiana University’s Maurer School of Law can and explain to the court, in Kammen’s view. (The defense earlier had sought testimony from another proposed witness on that issue, Tammy Krause, but withdrew its request for her and now seeks Madeira as a replacement.)  There’s also Karen Loftus, who does victim outreach for the Office of the Military Commission---but that makes her unworkable from a defense standpoint, as Kammen had argued earlier to the commission.  He's looking for someone aligned with the defense specifically, and Madeira can testify as to why that's appropriate.

Prosecutor LT Bryan M. Davis: the government will provide and has provided all relevant and necessary witnesses to the defense and this commission.  The defense here requested Krause, who might well have provided relevant and necessary information, given her prior experience as a DIVO.  But then Kammen and crew dropped that plan, and responsibility for the decision not to call Krause belongs to the defense alone.  Here's the catch, though:  Dr. Madeira and Ms. Krause are not similarly qualified.  The latter could have been qualified as an expert in the DIVO field, and thus told Judge Pohl what DIVO personnel actually do.  Not so with Madeira, who isn’t a DIVO by profession.

Kammen finds this a bit rich.  Earlier, prosecutors had said that the defense doesn’t need another DIVO witness, because the defense already has one, in the person of Krause.  And now, Krause isn’t available, but Madeira is.

The bottom line for Judge Pohl is this: what does a DIVO do?  If you have a person who is a DIVO, he intones, then I want to hear from him or her.  (Ever briefly, Lockhart rises to correct Kammen’s mischaracterization of the government’s position about DIVO witnesses.  Uninterested, the court asks the parties to stop with the constant clarifications of what was, and was not, that party’s view before.) Here's the court doubling down about his objective: I want to hear from a DIVO about what DIVOs do.  Period.   Squaring the circle, sorta, Kammen suggests that Krause could testify generically about the work of a DIVO.  The court asks prosecution and defense to work with one another to agree upon a witness who practices DIVO--perhaps Ms. Krause.

The court and counsel identify upcoming agenda items.  The court is keen to address cross-cutting motions, which (AE48C and 49C) the defense wants to address tomorrow.  In any case, we’re in a brief recess until 1 p.m.

[Update: this post has been edited to reflect that Judge Pohl denied AE107 as it concerns Dr. Madeira, and instructed the parties to agree on a witness who practices DIVO, including Ms. Krause.]