Re: Wuterich counsel motion

Haytham -- the short answer is YES!!! If the military judge kicks off the trial, it will be difficult to get a court to issue a stay. If there's no stay, there's probably no petition for extraordinary relief.

Here are some thoughts about how to approach this to heighten the likelihood of being able to effectively litigate another petition for extraordinary relief on the continuity of counsel issue in the likely event that Jones rules against the defense again.

There were some great quotes from the judges at oral argument about how there was already basically built-in error in this case. I would pull some of those out and file a separate motion quoting those and asking for a ruling by X date in order to allow the defense sufficient time to file a petition for extraordinary relief if the motion to abate is denied. Then if the military judge denies or -- more likely -- fails to act on the motion for decision by X date in a timely manner, we can file a petition for a writ of mandamus with the appellate courts asking them to make him rule on that. (I say "we" -- I'd love to work on any appellate issues that arise if you all want me to, though I'd probably have to be redetailed to any new appellate proceeding; I don't think there would be any difficult in arranging such a redetailing.)

Semper Fi,
DHS

-----Original Message-----
From: Haytham Faraj <haytham@puckettfaraj.com>
To: babu_kaza@hotmail.com
Cc: 'Puckett Neal' <neal@puckettfaraj.com>; dhsullivan@aol.com
Sent: Wed, Apr 6, 2011 5:41 am
Subject: Wuterich counsel motion

Babu,

I intended to rework the motion today but I have some other matters I need to tend to today and tomorrow. I plan to work on it this weekend and to have something to you by Monday for your input. We have an 802 with the judge on Friday. I plan on notifying him that we will be refilling the motion and asking the Government for the witnesses we want to call on the motion. We are going to ask for a June 6, 39a. This judge is notorious for not issuing rulings until a trial begins at which time he will deny the motion and call the members in to start the trial. Is there any reason for concern that if he does that we will lose the opportunity to refile our writ?

s/f

Haytham Faraj, Esq.

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