October 24 Session #2: About Those Yemeni Witness Statements

And we’re off.  We commence with AE 115, the defense’s motion to compel production of witness statements taken by Yemeni officials, which were then turned over to the FBI.  LDCR Stephen Reyes stands on Al-Nashiri’s behalf, and speaks. The Yemeni government took the lead in the wake of the Cole attack, he says, and the circumstances surrounding its initial witness interrogations are disputed.  Statements from the interrogations in turn were employed during interviews conducted by FBI agents.  But when Reyes sought these Yemeni witnesses’ original statements, in April, six months elapsed without any response from the government.  He had to file a motion to compel before the government finally acted---and even then, he didn’t receive a complete set of Yemeni documents.  Untimely, incomplete, and less than forthcoming: that’s hardly satisfactory discovery, in Reyes’ view. Judge Pohl confirms: you believe there are 35 Yemeni-produced statements, of which you have 18?  At least 35, Reyes says, as established by FBI documents in the defense’s possession.  He thus asks Judge Pohl to compel the prosecution to turn over the outstanding stuff, or to produce a witness who can explain the government’s inability to do so.  It should be a snap, according to Reyes: after all, in 2000 the FBI was preparing the Cole case for indictment in a federal court, and the witnesses in question are on the government’s deposition list.  Judge Pohl notes that, if the government calls one of the witnesses, but attempts to make use of statements not previously furnished to the defense, then Reyes will have remedies available.  That doesn’t sway Reyes, who still protests the government’s laxity in turning over what strikes him as potentially exculpatory material.  He doesn’t trust the prosecution to be forthcoming, and thus urges Judge Pohl to order the government to comply with discovery rules. The defense grossly mischaracterizes the facts, says prosecutor CDR Andrea Lockhart.  The government has never refused to produce any discovery, she says.  It is true that, prior to some---not all---FBI interviews, Yemeni officials had interviewed Yemeni citizens. There are such 53 statements in all.  But since February of last year, the defense has had 35 of them; 18 more remained, and were subject to prosecution review at the time.  But the defense know all this when it submitted April request, she says.  It nevertheless filed a motion to compel, in September, and received the outstanding discovery within a meager two days. Lockhart thus is shocked by the defense’s hints of laxity or misconduct.  In any case, the government has complied with its discovery obligations---though Lockhart says she will not oppose an order that simply reiterates those obligations.  There is but one statement outstanding, which the government uncovered after its most recent production to the defense.  But there’s just nothing else: we’ve reviewed the entire FBI case file, and sent a letter rogatory to the Yemeni government.  We’ll turn over whatever the latter may provide in response.  And how, exactly, would the defense know that statements not in the prosecution’s possession contain exculpatory evidence?  A few more points follow this question, and Lockhart returns to counsel table. Reyes rises in reply.  The government would have you believe, Judge Pohl, that the FBI, in preparing its case, had no interest collecting any statements taken by Yemeni officials.  That is just not credible.  The court isn’t interested, because peace has broken out: the prosecution doesn’t oppose the relief sought by the defense.  We’re thus done with 115---the motion is granted, the court says.  Lockhart wants to talk about the defense’s broadside against the FBI, but the court doesn’t.   On to the next motion.