Your honor:
I continue to maintain that it is unnecessary to hold the 13 and 14
May 39a.
I will respond to their motions as soon as practicable. I just
completed a
members trial on Friday and am starting another tomorrow. Before
that I was
in back to back hearings that did not allow me sufficient time to
draft a
response. As I said in my previous email, I intend to work directly
with
trial counsel on the witness production issue. Where we are unable
to reach
agreement, I propose we send it to you for a final decision. This
can be
done via email and telephonic 802. We can do that sometime in late
May.
I will also resend our expert requests. We relied on our previous
requests
because this court-martial was never adjourned and the charges were
never
dismissed. I understand that it has been a while. Accordingly, we
will
resend our requests. Our position however, is that we are not bound
by the
contracting process. Experts are producible as a matter of law and
were
granted based on a factual showing of necessity and relevancy. I am
not
sure how the lack of an existing contract in 2010 requires us to go
through
the request process again to show materiality and relevancy. In
short,
we're all familiar with U.S. v. Warner. If the Government has one,
then we
get one.
I agree with Maj Gannon that there may be an issue that requires
litigation
with respect to the CBS outtakes. This is a matter that can be
resolved in
August. It's a legal question that will require little or no
logistical
work, as I believe all 8 outtake CDs are available.
I will speak to Maj Gannon by telephone tomorrow, Monday April 2. I
will
report back on progress as soon as we're done.
Vrs,
Haytham Faraj
-----Original Message-----
From: Jones LtCol David M [mailto:david.m.jones5@usmc.mil]
Sent: Tuesday, April 27, 2010 8:56 PM
To: Gannon Maj Nicholas L; Neal Puckett
Cc: Haytham Faraj; Sullivan LtCol Sean; Vokey Colby; Mark Zaid S.;
Sullivan
LtCol Sean
Subject: RE: Motions ICO U.S. v. Wuterich
Defense,
Your response?
R,
LtCol David M. Jones
Circuit Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary
Office: 645-7287 / 2156
Fax: 645-2035
From the U.S.: 81-611-745-7287 / 2156
-----Original Message-----
From: Gannon Maj Nicholas L
Sent: Wednesday, April 28, 2010 4:45
To: Neal Puckett; Jones LtCol David M
Cc: Haytham Faraj; Sullivan LtCol Sean; Vokey Colby; Mark Zaid S.;
Sullivan
LtCol Sean
Subject: RE: Motions ICO U.S. v. Wuterich
Your Honor,
In theory, the government does not object to the cancelation of the
13-14
May 2010 39a session. However, the government does respectfully
request
that the defense respond to our motions by the scheduled due date.
Their
responses could, depending on how the defense response, require some
additional litigation and we do not want to jeopardize the 13
September 2010
trial date. Specifically, if the defense makes an MRE 106 objection
to our
motion to admit DVDs 3, 4, and 8, of AE 58, that could require some
follow-on litigation, and as such, we believe that the defense
should be
required to submit a response to our motion before we cancel the
13-14 May
2010 39a session. I believe that the defense responses will determine
whether we need to hold the May 39a.
Also, on 16 April 2010, the government received the defense witness
request.
On 20 April 2010, the government responded to that request. We denied
several of their requested witnesses. If the defense intends to
move the
Court to compel any of the witnesses we denied on 20 April 2010, the
government feels that it would be better to litigate witness
production
sooner rather than later, and thus, that too may make the May 39a
session a
good idea, depending on the defense.
Finally, in Mr. Puckett's response to the Court's email, he
indicated that
the government had approved all of the defense expert witnesses to
date.
Some time ago, we requested that the defense counsel provide us a
list of
the experts they intend to employ, and a justification/ statement of
work
for each. This was to ensure that all contracts are in place, and
active in
FY10. I could be wrong, but I don't think that we received that
list. It
is entirely possible that the defense has already coordinated
directly with
the MARCENT SJA's office, and thus this could be a moot issue.
However, if
I am correct, and we still need to renew all of the contracts for the
defense experts, we will need to get the experts identified and
funded ASAP
so that contracting issues do not effect the trial dates.
In short, I do not believe that we have approved any defense expert
at this
time because I do not believe that there are any contracts in place
for FY
2010. This is not to say that we are going to deny all of the defense
experts, but we do need to get all of the paperwork perfected in
order to
avoid delay.
Very respectfully,
Major Gannon
-----Original Message-----
From: Neal Puckett [mailto:neal@puckettfaraj.com]
Sent: Tuesday, April 27, 2010 2:56
To: Jones LtCol David M
Cc: Gannon Maj Nicholas L; Haytham Faraj; Sullivan LtCol Sean; Vokey
Colby;
Mark Zaid S.
Subject: Re: Motions ICO U.S. v. Wuterich
Your Honor,
As the govt had already approved all necessary experts, the defense
concurs.
V/r,
Neal A. Puckett
LtCol, USMC (Ret)
Puckett & Faraj, PC
Sent from my iPhone
On Apr 27, 2010, at 4:17 AM, "Jones LtCol David M" <david.m.jones5@usmc.mil
wrote:
All,
I have received no motions from the defense by 26 April, which was
the
submission deadline. Therefore, I understand there to be no issues
regarding experts, etc. that need to be decided early so as not to
delay our trial schedule. Considering these two government motions
do
not appear to be time sensitive, I recommend that we forgo the
motions
session in May and plan to meet up 26-27 August to litigate these two
government motions and any further non time sensitive motions the
defense may file. I need to know immediately if either side objects
to this and if so, why.
R,
LtCol David M. Jones
Circuit Military Judge
Western Pacific Judicial Circuit
Navy-Marine Corps Trial Judiciary
Office: 645-7287 / 2156
Fax: 645-2035
From the U.S.: 81-611-745-7287 / 2156
-----Original Message-----
From: Gannon Maj Nicholas L
Sent: Tuesday, April 27, 2010 7:55
To: Jones LtCol David M
Cc: Haytham Faraj; Neal Puckett; Sullivan LtCol Sean
Subject: Motions ICO U.S. v. Wuterich
Your Honor,
The Government will be submitting two motions to the Court today, 26
April 2010. One is to admit AE 58 (the 60 min outtakes) and the
other
is a request for a reconsideration of a previous ruling related to
crime scene photographs and their admissibility.
For the second motion, I would like to send color photographs to the
Court for your consideration. However, I have to send hard copies as
we do not have a color scanning capability, and the black and white
photos that are attached to our motion are not very high quality.
Thus Sir, I respectfully request the best address to send a hard copy
of both motions. I intend to send the motions by way of FEDEX.
Very respectfully,
Major Gannon
Nick Gannon
Major, USMC
Officer-in-Charge,
Legal Team Echo
Legal Services Support Section
1st Marine Logistics Group, Box 555607 Camp Pendleton, CA 92055-5607
Desk: 760-725-4820
Blackberry: 760-208-7090
Fax: 760-725-4500
nicholas.gannon@usmc.mil