RE: Compelling Discovery under Brady v. Maryland

[Haytham Faraj <haytham@puckettfaraj.com>]

It has more issues than you know.  They will never be heard on appeal
because we're going to win.

-----Original Message-----
From: Wacker Capt Douglas S [mailto:douglas.wacker@usmc.mil] 
Sent: Thursday, February 03, 2011 3:51 PM
To: Douglas Wacker; haytham@puckettfaraj.com; Hur Capt Christian P;
christian.hur@gmail.com
Subject: RE: Compelling Discovery under Brady v. Maryland

Haytham,

I just finished reading your motion (it was only sent to my work email). I
guess you covered everything I was saying below. I still can't see how the
judge didn't grant the continuance in light of the DNA expert preparation
and UCI investigation material.


It seems like the judge is ready to steamroll this case to conclusion at
trial regardless of any appellate issues. I will be preparing myself to go
to trial immediately after the motions. 

Am I wrong in thinking this case is ripe with appellate issues that are
going to have to be resolved if I am convicted? 

I have the ultimate faith in your and Chris's abilities as trial lawyers, so
hopefully none of these issues will have to be dealt with in the appellate
courts if I am acquitted. I am confident that we will be able to convince a
panel of reasonable-minded members that I am not guilty based on the facts
of this case.

Thank you again for your diligence and care in this case.

S/F

Doug

Douglas S. Wacker
Captain, USMC
Future Operations Officer
MWHS-3, 3D MAW
douglas.wacker@usmc.mil
Wk: 858-577-6730
DSN: 267-6730
Cell: 858-401-9392

"Don't tell people how to do things, tell them what to do and let them
surprise you with their results." ~George S. Patton 


-----Original Message-----
From: Douglas Wacker [mailto:douglas.wacker@gmail.com] 
Sent: Thursday, February 03, 2011 7:57
To: Haytham Faraj; Hur Capt Christian P; Christian Hur; Wacker Capt Douglas
S
Subject: Compelling Discovery under Brady v. Maryland

Gentlemen,

I'm not sure how the continuance was requested (i.e. for the UCI/Wrongful
Withdrawal Motions Hearing, for trial after the 39a hearing, both, etc.).
But the judge should reconsider the motion (1) for continuance before the
39a hearing for the purpose of compelling discovery of the material in the
IG reports of UCI at MCRD and of Col Smith/LtCol Bond/NCIS agents and (2)
for continuance just for the trial phase in regard to the amount of time our
DNA expert, just provided in the last week, has to prepare for trial.

Brady v. Maryland, 373 U.S. 83, 87-88 (1963).
http://scholar.google.com/scholar_case?case=9550433126269674519&hl=en&as_sdt
=2&as_vis=1&oi=scholarr



"We now hold that the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.

"The principle of Mooney v. Holohan
<http://scholar.google.com/scholar_case?case=10553267621994442310&hl=en&as_s
dt=2,5&as_vis=1>  is not punishment of society for misdeeds of a prosecutor
but avoidance of an unfair trial to the accused. Society wins not only when
the guilty are convicted but when criminal trials are fair; our system of
the administration of justice suffers when any accused is treated unfairly.
An inscription on the walls of the Department of Justice states the
proposition candidly for the federal domain: "The United States wins its
point whenever justice is done its citizens in the courts."[2]
<http://scholar.google.com/scholar_case?case=9550433126269674519&hl=en&as_sd
t=2&as_vis=1&oi=scholarr#[2]>  A prosecution that withholds evidence on
demand of an accused which, if made available, 88*88 would tend to exculpate
him or reduce the penalty helps shape a trial that bears heavily on the
defendant. That casts the prosecutor in the role of an architect of a
proceeding that does not comport with standards of justice, even though, as
in the present case, his action is not "the result of guile," to use the
words of the Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169."

Without being given the proper evidence of the Government's actions in
regard to the UCI at MCRD (i.e. documents, reports, interviews, etc.),
readily available to the prosecution, the Government is treating the Accused
unfairly and in deprivation of his federal constitutional rights. The issue
is plainly and properly before the Court, yet the prosecution, in its sole
discretion, has determined that the evidence requested is "irrelevant". If
the court does not step in to remedy this failure, injustice occurs. The
evidence in the Government's possession could tend exculpate the Accused
either as to guilt or as to punishment. Therefore, under Brady, the defense
is entitled to receipt of the requested documents and names of potential
witnesses. To ask the defense to proceed without the evidence it is entitled
to use, the Court, is asking the defense to argue the UCI motion with one
hand tied behind its back. The delivery of the requested information from
the Government is simple and timely, the defense has been asking for this
information for months. The failure of the Government, whether in "good
faith" or "bad faith", is unimportant. It is important that the Accused be
given any and all relevant information requested in order to prepare his
defense.

The Supreme Court further stated in Brady:


In Pyle v. Kansas, 317 U. S. 213, 215-216,
<http://scholar.google.com/scholar_case?case=471227223302214319&hl=en&as_sdt
=2,5&as_vis=1>  we phrased the rule in broader terms:

	"Petitioner's papers are inexpertly drawn, but they do set forth
allegations that his imprisonment resulted from perjured testimony,
knowingly used by the State authorities to obtain his conviction, and from
the deliberate suppression by those same authorities of evidence favorable
to him. These allegations sufficiently charge a deprivation of rights
guaranteed by the Federal Constitution, and, if proven, would entitle
petitioner to release from his present custody. Mooney v. Holohan, 294 U. S.
103
<http://scholar.google.com/scholar_case?case=10553267621994442310&hl=en&as_s
dt=2,5&as_vis=1> ."
	


The defense set forth concrete allegations of UCI back in October 2009,
nearly one and a half years ago. The case was then transferred, by the
Government's own admission at the 39a motion hearing, "for potential UCI".
The defense further became aware of systemic abuses of the justice system at
MCRD, as shown in the Bueno and Ahn affidavits and the Marine Corps Times
article dated 20 December 2010. In the article it states that the
Commandant, then Gen Conway, directed his top legal adisor, MajGen Ary, and
his top inspector, BGen Lee, to investigate the matters at MCRD. This order
was only given in the last six weeks. In order for the defense to provide
the most cogent information to the Court, it must have access to the records
promulgated after the Commandant's order to investigate. If the
investigation is incomplete, then the defense should be given appropriate
time until the Government has concluded its investigation and provided such
documentation to the defense, so that it may properly prepare the issues for
the Court. Understandably, without access to relevant discovery, the
defense's allegations may appear "inexpertly drawn". The defense is on
unequal ground with the prosecution until the Government produces the
information requested for the Accused's defense.


In regard to the DNA expert, the Government has known it intends to use DNA
evidence at trial for a long time. The Government acquired the DNA swab from
the accused in January 2009, two years ago. The Government presented DNA
records to the defense in mid-2009. Accordingly, the defense requested a DNA
expert of its own to put it on equal ground with the prosecution, soon after
it was notified. Not until three weeks prior to trial is the defense finally
given an approved DNA expert necessary to rebut the testimony of any
Government DNA expert. Such is not adequate for the defense to properly
acquaint the expert with the case and allow the expert time sufficient to
evaluate the evidence. Furthermore, the defense, until which time as its
expert has made himself or herself familiar with the evidence, cannot
prepare its case in chief or in rebuttal. It is on these grounds the Accused
requests a continuance of trial.

-dsw
-- 
Douglas S. Wacker
1719 Adams Ave
San Diego, CA 92116
858.401.9392