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RE: Saleh Issues (UNCLASSIFIED)



Classification: UNCLASSIFIED
Caveats: NONE

COL Pohl,

The government acknowledges that the defense was, inadvertently, not
provided the notice described in RCM 703(d) prior to retention of the expert
witness.

The comment to RCM 703(d), however, clearly indicates that the purpose of
this rule is to promote fiscal prudence in order to allow the convening
authority the opportunity to determine if an adequate substitute is
available prior to retaining an outside expert.  Unless the convening
authority denies a request from the accused, the accused has no standing to
challenge the expenditure of government funds by the convening authority.

Absent some showing that the accused has been irreversibly prejudiced by the
failure to receive notice in the form described in RCM 703(d), Dr. Valliere
should be permitted to testify.  

Here, the defense has not been prejudiced because defense counsel received
actual notice that the government intended to retain an expert witness.  On
31 May 2011, Mr. Faraj contacted trial counsel in order to obtain the CV's
of the government's expert witnesses.  In that email he specifically
referenced the psychologist, and indicated that he intended to request his
own experts.  The CVs (including Dr. Valliere's) were provided on 13 June
2011.  On 14 June 2011, Mr. Faraj, once again indicated that he intended to
submit requests for his own experts once he identified them.  On 29 July
2011, the government's witness list was provided to defense counsel.  The
witness list indicated that Dr. Valliere was an expert witness who would
testify regarding counter-intuitive victim behavior.  All correspondence
referenced in this paragraph is attached.

Dr. Valliere has not examined the complaining witness.  The only document
she has been provided relating to this case is the complaining witness's
statement to CID.  She has a general understanding of the facts of this
case, but the substance of her testimony will be based on her extensive
clinical practice and the observations she has made regarding the
post-attack behavior of sexual assault victims, in general.

The defense has been in possession of Dr. Valliere's contact information
since 13 June 2011.  They were expressly informed that she would be called
as an expert witness to testify regarding counterintuitive behavior on 29
July 2011.  They have failed to make any effort to contact her until today.
Dr. Valliere will arrive at Fort Irwin on Saturday, 27 June 2011.  In
addition to today's telephonic interview, Defense will have more than 24
hours between her arrival and trial to interview her, in person, and
prepare.

For all of the reasons stated above, the government's failure to provide the
notice described in RCM 703(d) to defense counsel prior to retention is
harmless.  The defense had timely actual notice, and ample opportunity to
prepare.

Respectfully,
CPT Wright


-----Original Message-----
From: Pohl, James L COL MIL USA
Sent: Thursday, August 25, 2011 7:30 AM
To: 'Haytham Faraj'; Wardlow, Russell D CPT MIL US USA FORSCOM
Cc: Wright, Matthew E CPT MIL US USA FORSCOM; Douglas, Laquisha S CPT MIL
USA FORSCOM
Subject: RE: Saleh Issues (UNCLASSIFIED)

Classification:  UNCLASSIFIED
Caveats: NONE

Trial Counsel

Response?

Mr. Faraj

Have you called the witness to discuss her potential testimony?

COL Pohl 

-----Original Message-----
From: Haytham Faraj [mailto:haytham@puckettfaraj.com]
Sent: Thursday, August 25, 2011 10:27 AM
To: Pohl, James L COL MIL USA; Wardlow, Russell D CPT MIL US USA FORSCOM
Cc: Wright, Matthew E CPT MIL US USA FORSCOM; Douglas, Laquisha S CPT MIL
USA FORSCOM
Subject: RE: Saleh Issues (UNCLASSIFIED)

In receipt.  

Your honor, I think there is another issue that we may need to address.  I
believe the Government may call an expert witness, psychologist.  We have
not been provided any of the information pursuant to R.C.M. 703(d) and
Giglio.  To the best of my knowledge we have only received a CV.  If the
government intends to call her as a witness and not just use her as an
expert consultant, I will object to the witness being permitted to testify
because we have not been provided the required disclosures prior to her
being retained, as required by the Rule. 

Vrs,

Haytham Faraj, Esq.
PUCKETT & FARAJ, PC
_______________________
WASHINGTON DC METRO
The Law Firm of Puckett & Faraj, PC
1800 Diagonal Road
Suite 210
Alexandria, VA 22314
703-706-0442 Phone
202-280-1039 Fax

DETROIT METRO
The Law Firm of Puckett & Faraj, PC
835 Mason Street
Suite 150-A
Dearborn, MI 48124
313-457-1390 Phone
202-280-1039 Fax


www.puckettfaraj.com

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-----Original Message-----
From: Pohl, James L COL MIL USA [mailto:james.pohl@us.army.mil]
Sent: Thursday, August 25, 2011 9:43 AM
To: Wardlow, Russell D CPT MIL US USA FORSCOM
Cc: Wright, Matthew E CPT MIL US USA FORSCOM; haytham@puckettfaraj.com;
Douglas, Laquisha S CPT MIL USA FORSCOM
Subject: Saleh Issues (UNCLASSIFIED)

Classification:  UNCLASSIFIED
Caveats: NONE

All

At the 39a on Monday, I think we have the following to discuss:

 	The impact of Fosler on Charge III.

	The 404b notice, dated 29 Jul 11.

	TC motion in limine, dated 13 Jun 11.

	Self authentication of phone records, dated 29 Jul 11.

Then, we will take formal entry of forum and plea and discuss voir dire.

Each side needs to bring signed, original copies of any document you want to
make part of the records.  Documents sent to me will not be inserted in the
record.

Have I missed anything?  Questions?

COL Pohl

	
Classification:  UNCLASSIFIED
Caveats: NONE


Classification:  UNCLASSIFIED
Caveats: NONE

Classification: UNCLASSIFIED
Caveats: NONE


Classification: UNCLASSIFIED
Caveats: NONE


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