Haytham, I just finished reading your motion (it was only sent to my work email). I guess you covered everything I was saying below. I still can't see how the judge didn't grant the continuance in light of the DNA expert preparation and UCI investigation material. It seems like the judge is ready to steamroll this case to conclusion at trial regardless of any appellate issues. I will be preparing myself to go to trial immediately after the motions. Am I wrong in thinking this case is ripe with appellate issues that are going to have to be resolved if I am convicted? I have the ultimate faith in your and Chris's abilities as trial lawyers, so hopefully none of these issues will have to be dealt with in the appellate courts if I am acquitted. I am confident that we will be able to convince a panel of reasonable-minded members that I am not guilty based on the facts of this case. Thank you again for your diligence and care in this case. S/F Doug Douglas S. Wacker Captain, USMC Future Operations Officer MWHS-3, 3D MAW douglas.wacker@usmc.mil Wk: 858-577-6730 DSN: 267-6730 Cell: 858-401-9392 "Don't tell people how to do things, tell them what to do and let them surprise you with their results." ~George S. Patton -----Original Message----- From: Douglas Wacker [mailto:douglas.wacker@gmail.com] Sent: Thursday, February 03, 2011 7:57 To: Haytham Faraj; Hur Capt Christian P; Christian Hur; Wacker Capt Douglas S Subject: Compelling Discovery under Brady v. Maryland Gentlemen, I'm not sure how the continuance was requested (i.e. for the UCI/Wrongful Withdrawal Motions Hearing, for trial after the 39a hearing, both, etc.). But the judge should reconsider the motion (1) for continuance before the 39a hearing for the purpose of compelling discovery of the material in the IG reports of UCI at MCRD and of Col Smith/LtCol Bond/NCIS agents and (2) for continuance just for the trial phase in regard to the amount of time our DNA expert, just provided in the last week, has to prepare for trial. Brady v. Maryland, 373 U.S. 83, 87-88 (1963). http://scholar.google.com/scholar_case?case=9550433126269674519&hl=en&as_sdt=2&as_vis=1&oi=scholarr "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. "The principle of Mooney v. Holohan <http://scholar.google.com/scholar_case?case=10553267621994442310&hl=en&as_sdt=2,5&as_vis=1> is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts."[2] <http://scholar.google.com/scholar_case?case=9550433126269674519&hl=en&as_sdt=2&as_vis=1&oi=scholarr#[2]> A prosecution that withholds evidence on demand of an accused which, if made available, 88*88 would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not "the result of guile," to use the words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169." Without being given the proper evidence of the Government's actions in regard to the UCI at MCRD (i.e. documents, reports, interviews, etc.), readily available to the prosecution, the Government is treating the Accused unfairly and in deprivation of his federal constitutional rights. The issue is plainly and properly before the Court, yet the prosecution, in its sole discretion, has determined that the evidence requested is "irrelevant". If the court does not step in to remedy this failure, injustice occurs. The evidence in the Government's possession could tend exculpate the Accused either as to guilt or as to punishment. Therefore, under Brady, the defense is entitled to receipt of the requested documents and names of potential witnesses. To ask the defense to proceed without the evidence it is entitled to use, the Court, is asking the defense to argue the UCI motion with one hand tied behind its back. The delivery of the requested information from the Government is simple and timely, the defense has been asking for this information for months. The failure of the Government, whether in "good faith" or "bad faith", is unimportant. It is important that the Accused be given any and all relevant information requested in order to prepare his defense. The Supreme Court further stated in Brady: In Pyle v. Kansas, 317 U. S. 213, 215-216, <http://scholar.google.com/scholar_case?case=471227223302214319&hl=en&as_sdt=2,5&as_vis=1> we phrased the rule in broader terms: "Petitioner's papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U. S. 103 <http://scholar.google.com/scholar_case?case=10553267621994442310&hl=en&as_sdt=2,5&as_vis=1> ." The defense set forth concrete allegations of UCI back in October 2009, nearly one and a half years ago. The case was then transferred, by the Government's own admission at the 39a motion hearing, "for potential UCI". The defense further became aware of systemic abuses of the justice system at MCRD, as shown in the Bueno and Ahn affidavits and the Marine Corps Times article dated 20 December 2010. In the article it states that the Commandant, then Gen Conway, directed his top legal adisor, MajGen Ary, and his top inspector, BGen Lee, to investigate the matters at MCRD. This order was only given in the last six weeks. In order for the defense to provide the most cogent information to the Court, it must have access to the records promulgated after the Commandant's order to investigate. If the investigation is incomplete, then the defense should be given appropriate time until the Government has concluded its investigation and provided such documentation to the defense, so that it may properly prepare the issues for the Court. Understandably, without access to relevant discovery, the defense's allegations may appear "inexpertly drawn". The defense is on unequal ground with the prosecution until the Government produces the information requested for the Accused's defense. In regard to the DNA expert, the Government has known it intends to use DNA evidence at trial for a long time. The Government acquired the DNA swab from the accused in January 2009, two years ago. The Government presented DNA records to the defense in mid-2009. Accordingly, the defense requested a DNA expert of its own to put it on equal ground with the prosecution, soon after it was notified. Not until three weeks prior to trial is the defense finally given an approved DNA expert necessary to rebut the testimony of any Government DNA expert. Such is not adequate for the defense to properly acquaint the expert with the case and allow the expert time sufficient to evaluate the evidence. Furthermore, the defense, until which time as its expert has made himself or herself familiar with the evidence, cannot prepare its case in chief or in rebuttal. It is on these grounds the Accused requests a continuance of trial. -dsw -- Douglas S. Wacker 1719 Adams Ave San Diego, CA 92116 858.401.9392
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