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1/31 Hearing #2: Looking Forward to Nevin's Emergency Motion, and Testimony by the Convening Authority

Wells Bennett
Thursday, January 31, 2013, 10:37 AM
The recess concludes, and Judge Pohl takes the bench. First are a few remarks about logistics, including the use of demonstratives and multimedia.  (J.

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The recess concludes, and Judge Pohl takes the bench. First are a few remarks about logistics, including the use of demonstratives and multimedia.  (J. Connell III, we’re looking at you.)  The rule: no such items allowed, unless submitted at least 24 hours in advance of their use in the courtroom.  It’s a tricky thing, because slides and screen displays must be reviewed for security reasons, and defense counsel aren’t clear about who or what is responsible for security reviews these days. Now to Nevin’s motion, which prosecutors received only at 8:59 this morning---fifteen seconds prior to 9:00, notes Brig. Gen. Martins.  That didn't leave much time to review.  The court, speaking aloud, balances one party’s right to respond with the other’s right to seek emergency relief when warranted.  For his part, the Chief Prosecutor asks for orderly motions practice.  But the court seemingly wants the attorney-client issue resolved before proceeding further.  The urgency prompts Martins to propose a compromise: his side can respond as early as COB Thursday, he says.  Judge Pohl says that simply labeling a motion “emergency” is in no way talismanic; he’s concerned instead about the substance of Nevin’s request, which indeed has an urgent quality to it.  The lawyer wants to stop inappropriate snooping on his confidential discussions in the courtroom. We pause, while the lawyers talk amongst themselves—a “recess in place,” as Judge Pohl calls it. Back to the Chief Prosecutor, who has conferred with his colleagues.   He says for the record, as an officer of the court: there’s no technological reason to abate proceedings today, as the accused are not in the courtroom.  Thus Martins urges the court not to act precipitously, by suspending proceedings now.  And the government will, as the Chief Prosecutor committed earlier, respond to Nevin's motion by Thursday evening.  The court, working out this improvised calendar, sets the defense’s reply deadline for Sunday evening.  He adds that the accused must be in the courtroom when the motion finally is argued, on February 11. David Nevin isn’t satisfied.  He wants the monitoring issue resolved conclusively, and not on the basis of an assurance that confidential chats---not just those between counsel and client, but also those between defense lawyers only---won’t be overheard.  Judge Pohl overrules this objection.  Given the accuseds’ absences, and the Chief Prosecutor’s representation about courtroom technology, we’ll proceed with litigation today. Speaking of litigation, the Convening Authority, Adm. Bruce MacDonald, will indeed be produced as a witness during our next session.  The court thinks his testimony potentially relevant to, among other things, the defense's motion to dismiss for unlawful influence, AE31.  (The defense seeks his testimony in respect of other requests, too---one, a motion to dismiss the case for defective referral, AE008.)  Thus Judge Pohl orally grants an already-argued-but-still-pending defense request (AE47) to produce MacDonald, live and in person, at our next meeting.   Prosecutor Jeffrey Groharing hopes the court will reconsider.  He thinks MacDonald’s affidavit—which firmly establishes that the Convening Authority wasn’t improperly influenced---disposes of the need for any live testimony, and indeed of the entire dispute.   At the same time, the accused hasn’t put up any legal or factual basis for producing MacDonald to begin with, even though the defense bears the burden of doing just that.  Finally, despite the court’s invitation to do so, defense lawyers haven’t even attempted to speak to MacDonald about the case's referral phase.   The prosecutor's pleas are in vain.  For the court, the case’s significance, and the prospect  (however remote) of outside influence, warrants a full factual examination.  Judge Pohl thus understands Groharing’s view---but rejects it. The Chief Prosecutor stands again, seeking to minimize the interim abatement of proceedings---that occasioned simply by briefing and consideration of Nevin’s motion.  Apparently, it calls for the production of three witnesses, whose testimony must be summarized in advance.  The defense will do so, and the prosecution respond, on an expedited basis.  Thereafter the court will resolve the witness question immediately, without the benefit of oral argument.  Can the parties live with that arrangement, asks Judge Pohl.  Indeed they can. We’re in recess.  Motions to compel are up next.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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