Counsel,
I am not aware of my previously litigating witness issues via an 802
conference. I certainly didn't anticipate doing that in this case.
The government is still concerned with:
1. The defense answering the motions so they know if the defense
will be objecting under MRE 106;
2. The denial of defense requested witnesses;
3. What expert witnesses have been approved and if there are
contracts in place to fund them.
Numbers 2 and 3 are of most concern to me. It was my understanding
that we would have all of the expert witness issues cleared up so
that we could litigate or not on 13-14 May. The defense thinks the
experts have been granted, the government isn't sure.
My concern is that on 26 April 2010 motions should have been filed
by the defense for any experts or witnesses. They were not. Based
on Mr Faraj's email, I must assume that the defense is not just
gaffing off the court and that they believed these issues to have
already been solved. But I need the parties to communicate better.
Per the defense's assertions that there are no expert or other
scientific type issues that needed to be litigated, THERE WILL BE NO
COURT SESSION NEXT WEEK. However, please put this issue to rest
between the two parties. I do NOT want to reward people for missing
judicially-ordered deadlines, but if I need to come out earlier than
August to litigate something (in June or July), I need to know as
soon as possible. As all parties are aware, I am the only judge in
my area of responsibility and need as much notice as possible for
the busy docket here. I was quite clear on the record that I do not
want anything to interrupt our trial schedule, for everyone's sake.
With so many moving parts, and counsel coming from all over, both
parties need to be able to plan on those firm trial dates.
Mr. Faraj, thank you for reporting back to me after your
conversation with Major Gannon.
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: Haytham Faraj [mailto:haytham@puckettfaraj.com]
Sent: Sunday, May 02, 2010 22:08
To: Jones LtCol David M; Gannon Maj Nicholas L; 'Neal Puckett'
Cc: Sullivan LtCol Sean; 'Vokey Colby'; 'Mark Zaid S.'; Sullivan
LtCol Sean
Subject: RE: Motions ICO U.S. v. Wuterich
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