RE: US v Wacker- gov resp def re-referral mot

["Day Capt Evan S" <evan.s.day@usmc.mil>]

This is a multi-part message in MIME format.

Good Morning Sir,

With regard to the MRE 412 issue, I have given the University of San Diego releases from both women authorizing the university to release their counseling records for the limited purpose of an in camera review. The University is processing the release as we speak, and I will forward those records to you as soon as I receive them. I will note that the defense has already been provided with the bulk of those records, so I will also provide copies of the records that have already been disclosed to the defense in order to make the court's in camera review faster.

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

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-----Original Message-----
From: Jones LtCol David M 
Sent: Monday, January 24, 2011 20:16
To: Day Capt Evan S
Cc: Hur Capt Christian P; 'haytham@puckettfaraj.com'; Sullivan LtCol Sean; Hatch MAJ Douglas C; Grisalesmery Cpl Alejandro; Keane LtCol Stephen F
Subject: RE: US v Wacker- gov resp def re-referral mot

Counsel,

I have reviewed all of the materials from our motions session.  The following are my anticipated rulings that I will make on the record (if I have not already done so).  I am listing all of the motions filed, even for those we are still pending litigation.  Please remember that no ruling is a ruling until it is done on the record.  I offer the following for your planning purposes.

Appellate Exhibits III, IV, V, regarding DNA = Already ruled on the record.  All DNA evidence admissible, cross-x on Johnson fine as well as her USACIL facility's past.

Appellate Exhibits VI, VII, regarding references to Critical Issues Board, D.A.'s office in New Orleans refusal to take the case, expungement of the accused's Louisiana arrest record and withdrawal and dismissal w/o prejudice of previous charges = Defense did not oppose the motion with the exception that if the government puts in a portion of the Critical Issues Board, the Defense wants to put in the whole thing under the Rule of Completeness. = I will have to see what the government puts in, if they do, but I will probably sustain the defense's contention under the Rule of Completeness.  I will have to wait until trial to make the final decision.

Appellate Exhibits VIII and IX, regarding pre-admitting evidence.  Both parties indicated that we would solve this at the next motions session.

Appellate Exhibits X and XI, regarding UMC and Multiplicity.  The defense motion is denied at this point.  All charges can stay on the charge sheet.  However, I will allow the defense to bring this issue up after I have heard the government's evidence, or at any time prior to the findings.  Also, the defense may bring this issue up after findings and before sentencing (if necessary).

Appellate Exhibits XII and XIII, regarding the 412 and 608(c) issues.  Capt Day was going to ask the two ladies if they objected to an in camera review.  I have not heard back from Capt Day on this issue.  I wish to further discuss this at our motions hearing.

Appellate Exhibits XIV, XV, XVI and XVII, regarding "Creepy Doug," the accused possibly drugging the alleged victims, the accused drugging Nicole Cusack, the accused's knowledge of ketamine, and the accused's use of Adderall.  Ruling = "Creepy Doug" IS admissible ONLY if the defense opens the door; allegedly drugging the alleged victims and testimony concerning date rape drugs IS admissible, including the accused's knowledge of ketamine; the accused's use of adderall IS admissible ONLY if the defense opens the door; the accused allegedly drugging Nicole Cusack is NOT admissible as it fails MRE 413.

Appellate Exhibits XVIII and XIX, regarding UCI.  Plus, the Improper Withdrawal Motion filed - to be litigated at the next motions session.  All of the witnesses previously granted on the record remain the same.

Appellate Exhibit XX and XXI, regarding the ObGyn Expert Testimony = Already ruled it's admissible at last motion session.

Appellate Exhibit XXII and XXIII, regarding quashing the government subpoena.  Ruling = denied.  The subpoena was issued, I have the disks for in camera review and will bring the results of the in camera review and portions to be released to the next motions hearing.

Appellate Exhibits XXIV and XXV, regarding improper victim cross-examination.  Already ruled in Court that government motion was granted in its entirety, however, the defense can cross-examine either woman on her history of drinking as this goes to how they were feeling that evening and may rebut the government's contention of drugging by the accused.  

Appellate Exhibits XXVI and XXVII, regarding Cusack drug use.  Already ruled that the government motion was granted.  

Appellate Exhibits XXVIII and XXIX, regarding 120 being unconstitutional.  The Defense motion is denied.  

Appellate Exhibits XXX, XXXI and XXXIII, regarding Site Visit, Discovery and Witnesses.  Already ruled in court.  But no site visit for Seattle as Cusack issue didn't pass MRE 413 muster.

I hope I have not missed anything.  I know the biggest issue everyone had to know was whether Cusack would be testifying.  Please let me know if I have missed any motion or issue.  Our trial schedule is to handle all motions on 22 and 23 February, along with all housekeeping (Page 56 matters) and then begin with the members at 0830 on the 24th.  We will need the courtroom through 4 March.  I am including LtCol Keane in this email, as he is now the docketing judge, along with Cpl Grisalesmery.

R,
 

LtCol David M. Jones
Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary
Office: 645-7287 / 2156
Fax: 645-2035