Capt Day, Please see United States v. Lee, 64 M.J. 213 (CAAF 2007) where CAAF has held that if the Government gives itself an expert, the defense deserves a comparable expert or it is reversible error. Here, Dr. Johnson is testifying as a Government DNA expert. Dr. Rudin has not yet completed her review, she told me as much this morning in an email. Mr. Faraj asked for a continuance in part to permit Dr. Rudin more time to review. Said motion was denied. Therefore, Dr. Rudin needs to be approved as an expert in advance of trial to ensure her presence and avoid any appellate issues. Also, can you please email the defense team bates 40 to 228. We need those records, but I do not have those bate stamps in my digital file for some reason. Thanks. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Day Capt Evan S Sent: Wednesday, February 16, 2011 15:14 To: Hur Capt Christian P Cc: 'haytham@puckettfaraj.com'; Sullivan LtCol Sean Subject: RE: US v. Wacker: DNA expert witness request Capt Hur, I would like to clarify my earlier email. Your request in its current form is not likely to be approved. There are a couple of issues. One is that the formal request letter itself is inconsistent with the email you sent it with, in that the letter to the convening authority designates Dr. Rudin as a witness without any reservation, while your email to me claims to withhold that designation. The second is that the letter to the convening authority provides no justification for funding an expert witness (as opposed to an expert consultant) absent a sufficient proffer of expected testimony. The third is that you indicate that you haven't even had a full opportunity to consult with your expert yet, which makes it impossible to provide a factually based proffer of expert testimony. What I would suggest is that you re-draft your request, and clarify in the letter itself what you are requesting Dr. Rudin for. If she is a witness, the letter needs to say that clearly (meaning that she is subject to interview), and provide specific facts that she would testify to in order to show her relevance and necessity as a witness. If she is only a consultant, you need to justify her presence solely as a consultant, including an explanation of why alternative means are insufficient for obtaining whatever assistance she could give you by being present at trial. I refer you back to the case law cited in my response to your motion to compel funding for expert assistance. Finally, if you believe that there is any legal authority that supports your position that the convening authority may be obligated to provide funding for an expert consultant to be physically present at trial based solely on the possibility that she may be designated as a witness, please cite it. Very Respectfully, Captain Evan S. Day Judge Advocate Joint Law Center 3D MAW/MCAS Miramar P.O. Box 452013 San Diego, CA 92145-2013 Comm: (858) 577-1862 DSN: 267-1862 evan.s.day@usmc.mil Classification: UNCLASSIFIED//LIMDIS This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29, and "Security and Policy Review of DoD Information for Public Release". ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message. -----Original Message----- From: Day Capt Evan S Sent: Tuesday, February 15, 2011 11:17 To: Hur Capt Christian P Cc: 'haytham@puckettfaraj.com' Subject: RE: US v. Wacker: DNA expert witness request Capt Hur, I will forward appropriately. However, I'll let you know right now that I am recommending denial due to lack of compliance with the RCM based on lack of proffer of expected testimony and lack of alternative justification for funding absent designation as a witness. Very Respectfully, Captain Evan S. Day Judge Advocate Joint Law Center 3D MAW/MCAS Miramar P.O. Box 452013 San Diego, CA 92145-2013 Comm: (858) 577-1862 DSN: 267-1862 evan.s.day@usmc.mil Classification: UNCLASSIFIED//LIMDIS This e-mail is FOR OFFICIAL USE ONLY and is exempt from mandatory disclosure under FOIA. DoD 5400.7R, "DoD Freedom of Information Act Program", DoD Directive 5230.9, "Clearance of DoD Information for Public Release", and DoD Instruction 5230.29, and "Security and Policy Review of DoD Information for Public Release". ATTORNEY-CLIENT PRIVILEGED COMMUNICATION OR ATTORNEY WORK PRODUCT. The information contained in this message is privileged. It is intended only to be read by the individual or entity addressed or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form, is prohibited. If you have received this message in error, please immediately notify the sender and delete or destroy any copy of this message. -----Original Message----- From: Hur Capt Christian P Sent: Tuesday, February 15, 2011 11:15 To: Day Capt Evan S Cc: Wacker Capt Douglas S; haytham@puckettfaraj.com Subject: US v. Wacker: DNA expert witness request Capt Day, Attached is the defense request. Dr. Rudin would be designated an expert witness depending on what Dr. Johnson says or does not say at trial. Obviously, you will be given time to interview Dr. Rudin as soon as we know that we are going to designate her. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error.
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