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We return from recess, and Clayton resumes his argument in opposition to AE19---a motion to strike common allegations from the charge sheet against Al-Hadi. Clayton refers to Stirk’s suggestion that the law requires prosecutors to make spare or few allegations in a conspiracy case; he says he knows of no authority to that effect. And no surprise, given the deference owed to prosecutors’ charging decisions, and the high bar set by the surplusage cases cited by Clayton and company to the court. Finally, there’s vicarious liability. It is true, as Stirk claims, that the law doesn’t require a theory of vicarious liability to be set out in detail in charging documents. But there’s no bar to this, either. At the same time, Clayton cites many reasons why doing so is a good idea---reason #1, in Clayton’s view, being the mountain of cases in which defendants have complained about insufficient, untimely notice about the prosecution’s vicarious liability approach. Why not nip that problem in the bud? In the wake of Hamdan II, and given the ever-shifting jurisprudence in military commissions, the soundest practice is to furnish the accused with more information, as soon as possible. It’s not an academic argument, Clayton insists: the accused in Al-Nashiri claims that he was not given proper notice of the prosecution’s aiding and abetting theory there. Having that in mind, the United States’ chosen method is the best, given the traditional functions of charging instruments---to avoid juror confusion, to provide notice to the accused, and so on. A final counterargument by the prosecutor: Stirk says the common allegations are a “checklist,” and that checklists are bad. But Clayton thinks they are good: military members, being highly educated and highly intelligent, will scrutinize the evidence at trial, having in mind the highly detailed allegations put forth in the charge sheet. Their use, moreover, supplies more information for use down the road, during appellate review. Clayton thus sums up: this is a “more information” approach. And more information is always preferable---even if the charging approach here is unusual, even somewhat unfamiliar to seasoned practitioners like defense counsel. Ultimately, what matters is whether a charging practice is sound. And this one is. Questions from the bench follow. Judge Waits notes that the government incorporates certain common allegations into various charges, by reference; Clayton explains exactly where this does and does not happen throughout the various counts. And, when asked, Clayton clarifies the prosecution’s view that the military judge can always tell members, come trial-time, that allegations are merely that----and not to be treated as evidence. Stirk returns to the podium, and begins with Clayton's suggestion of a lack of defense familiarity: perhaps, Stirk says, it is Clayton who is unfamiliar ... with courts martial practice. Such practice includes a findings worksheet, one that goes back with the members as they deliberate. Clayton and company certainly don't wish to do that here; instead, the government wants to craft the findings worksheet for the members, before trial---and thats simply unfair. Does the defense get to submit a defense-crafted narrative for the members, for their reference during trial? This permits Al-Hadi's lawyer to return to his larger theme: allegations that must be proven obviously have to be included; but “bonus” allegations, that don’t require legal submission of proof to convict, must not be. Judge Waits takes a step back. To the extent conspiracy is a viable charge, he says, doesn’t the government have to allege overt acts? How can they do that without going into some detail? For his part, Stirk hasn’t made any concession about conspiracy's legal viability, but answers that overt acts are one thing---but that detailed, common allegations are another. When pressed further, Stirk explains that the striking of common allegations won’t preclude members from entering, in their findings, the specific evidence or events they relied upon in reaching a verdict. He thus stresses a corollary point: to the extent all 63 overt acts related to the conspiracy remain in the charge sheet against Al-Hadi, the prosecution must prove all 63 beyond a reasonable doubt---not just one. If the government submits a “story,” it has to prove all the parts of that story, lest the accused be prejudiced. Stirk asks the court to grant his motion. We break for lunch; see y'all at 1300.
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