Capt Hur, I have discussed this matter with LtCol Sullivan, and I would recommend denying the request in its current form. With regard to your claim to have previously requested a toxicologist, whatever formal or informal requests you may have made in any prior proceeding, you have not submitted any formal request for expert assistance to the convening authority of this case prior to today. Therefore, the request for Dr. Jacobs as a potential testifying witness at the Article 32 is untimely and I will recommend denial as such. See R.C.M. 405(g)(1)(A); R.C.M. 703(c)(2)(C). Your request also fails to meet your burden in establishing the necessity of employing an expert. R.C.M. 703(d) states that an expert request should include a complete statement of reasons why employment of the expert is necessary. The perfunctory and conclusory statement in your request does not meet this burden. A complete statement of reasons for the necessity of an expert should explain in detail why the expert is needed, what the expert assistance will accomplish, and why the defense is unable to gather and present the evidence the expert assistance would be able to develop. Additionally, the expert request should state in detail, among other things, the subject matter of the requested expert assistance and the qualifications of the expert. Finally, a proper and timely request for a military expert (including a civilian employed by a military agency) would need to be routed via the convening authority of this case to the commander of the requested expert, who would then make him available. Additionally, your email suggests that you are requesting Dr. Jacobs as a consultant, yet you may be calling him as a witness in a proceeding this week. If you intend to call Dr. Jacobs as a witness in any proceeding in this case, you need to grant the government opportunity to interview him sufficiently in advance of his testimony, just as you would at trial. I am not stating that the government is unwilling to provide Dr. Jacobs, or any other qualified expert, to assist the defense in this case. However, the burden is on you to provide a proper request that meets the requirements of RCM 703(d) and the applicable case law. I will recommend denial of any request that does not meet this standard. Please indicate whether you intend to submit a proper request or whether you would like me to forward the request in its current form, in which case I will recommend denial. Finally, I am puzzled by the citation in your letter to RCM 706(a). Do you intend to request a sanity board in this case? Very Respectfully, Captain Evan S. Day Trial Counsel, Military Justice Office Joint Law Center 3rd MAW/ MCAS Miramar Comm: 858-577-1887 DSN: 312-267-1887 Fax: 858-577-1734 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: Monday, March 22, 2010 9:36 To: Day Capt Evan S; Keske Maj Zenon W Cc: 'haytham@puckettfaraj.com' Subject: US v. Wacker: Defense expert toxicologist Gentlemen, Defense counsel previously requested a toxicologist in Capt Wacker's case. Maj Keske indicated that a defense request would be approved, but I don't have anything formal in my file (only emails). The following expert is available as a consultant for us... Aaron Jacobs, Ph.D. AF Drug Program Manager aaron.jacobs@brooks.af.mil DSN 240-6808 Comm 210-536-6808 I've spoke with Dr. Jacobs. He says he is available and willing to assist in our defense. I am going to send him a file to review. He may testify on Thursday or Friday afternoon at the 32, but is only a consultant at present. Please advise if this is an issue. Thanks. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 7W, 2nd Floor, Parade Deck, 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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