Re: SSgt Lopez: 39a & Trial prep

[Haytham Faraj <haytham@puckettfaraj.com>]

Thanks Bret. Disregard my last email. I had missed this one. 

1. Well done on the motion. I certainly didn't expect that he would produce everyone. Want to make sure we have our character witnesses. 

2. I expect the trial to last a full week. The government needs to say how long their case will take before we can determine the length. As far as LtCol Jessup and the SgtMaj, I have intennd to have them testify in our case in chief. So they should be available the day after the government expects to finish their case. 

3. I don't foresee any need for additional 39a's at present. That may change. 

4. No need to brief anything eldest present either. 

5. Is the government producing Davis?

6. Please request an extension until the 27th for p. 56 matters. I have to prep for a motion for a summary judgment in federal court as a I return that is going to create some severe time constraints for me. 

7. I will be meeting with you and SSgt Lopez immediately before trial on the 2nd. 

Thank you for your email. I'll call you next week. 

Haytham Faraj
Sent from my iPad

On Jul 20, 2011, at 7:52 PM, "White Capt Bret A" <bret.a.white@usmc.mil> wrote:

> Haytham,
> 
> Here's my recap from the 39a, plus some other issues we discussed with the judge.  I've also got some other trial prep matters we should discuss.  
> 
> * First off, I had the TC dismiss the charges she mentioned in her response to our request to immunize GySgt Kelton (Charge I, Charge II: Spec 5 & 8).  
> 
> * As expected, the judge went through and tried to narrow the witness list as much as possible.  I used your office's chart that you gave me to help determine which witnesses would testify about what.  The hearing lasted about 3.5 hours and I think the judge was less than pleased with the government's charging, their response to my request for bill of particulars, and the fact they'd listed 63 witnesses on their list and then opposed our request.  
> 
> * The government was also forced to narrow their case quite a bit on some of these, effectively producing a more narrow bill of particulars out of it all.  I will make a complete list so that we are prepared to object if they go outside their lane during testimony.  
> 
> * At present, the order is for the following 12 witnesses: 
> 
> Lt O'Hara
> Lt Riner
> Lt Hughey
> Lt Blake
> Lt Brannon
> Lt Schaffer 
> Lt Burnham
> Lt Gabriel
> Lt LaCosta 
> Lt Ayala
> Cand Boeche
> Lt Gabriel
> 
> * As a result, I've requested these candidate record books and their contact information.  I will have them in the morning.  Cand Boeche is currently at OCS in a training company.  
> 
> * The judge will consider additional candidates as follows:
> 
> - IF, regarding namecalling, we can explain how a person assigned a nickname (victim) is relevant, as opposed to just a witness.  (I'm saying we want everyone who was "assigned a nickname".  Judge says the order is not subjective, so whether they were offended or not by the nickname is irrelevant, only if the nickname was given and used.)
>        - So, I don't really have a response here that would cause us to get more witnesses.
> 
> - IF, regarding obstruction of justice, we can explain why we need all four who were supposedly influence in this charge.  Government says four were told not to report SSgt Lopez: Burnham, Shaffer, Lopez, & Martinez.  They are only bringing Burnham and Shaffer.  We would have to show why Lopez and Martinez are different from Burnham and Shaffer
> 
> * The judge wants any additional response/brief by 1200 on Thursday.  I honestly don't know if we can make the argument to add any more witnesses from the platoon.  I think our big win was getting the government to narrow their witnesses and to narrow some of the allegations based on their proffers of who will testify as to what specs.  If you want me to make an additional brief, please let me know ASAP so I can be timely.  
> 
> * We need to let the judge know if this still needs to be resolved further in an additional 39a on 1Aug before the trial.  Also, if there are any additional matters requiring a 39a, we need to inform the judge as soon as we know.  
> 
> *  Based on the change in witness volume, can we give a new estimate on length (for various reasons)?  
> 
> *  We have two character witnesses who have time constraints on being present (can't be there for all of 3 - 12 Aug).  SgtMaj Vizcarrando and LtCol Jessup need some flexibility in order to be able to testify in person and TC wants to know in order to plan their travel.  Thoughts?
> 
> *  Our new deadline for Pg 56 is 26 July.  I am on leave at that time, so please let me know that you've got that or if we need to coordinate on it.  
> 
> *  Recall that GySgt Kelton's immunity was denied.  Have you decided what we want to do about this?  
> 
> *  SSgt Lopez said y'all are going to meet before the trial to go over things.  She'd like me to be there, if possible.  Again, I'll be studying here on base next week.  Depending on when you meet, I'd like to try to be present.  Let's see if we can work that out.  
> 
> *  Anything else we need to discuss, let me know.  Please use my personal e-mail, too, if it's after this Friday.  usmc.esq@gmail.com  
> 
> Forgive the length of the e-mail.  I donât want to miss anything.
> 
> V/r,
> 
> 
> Bret A. White
> Captain, U.S. Marine Corps
> Defense Counsel
> 
> Office of the Staff Judge Advocate
> Marine Corps Base               
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