Title: Def Motion to Compel ID of Brady Materials, 10 May 12

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATESv.MANNING, Bradley E., PFCU.S. Army, (b) (6)Headquarters and Headquarters Company, U.S.Army Garrison, Joint Base Myer-Henderson Hall,Fort Myer, VA 22211)))))))))DEFENSE MOTION TOCOMPEL IDENTIFICATION OFBRADY MATERIALSDATED: 10 May 2012RELIEF SOUGHT1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rulefor Courts Martial (R.C.M.) 701(a)(6), respectfully requests that the Government be compelledto identify Brady material when providing discovery to the Defense.BURDEN OF PERSUASION AND BURDEN OF PROOF2. The Defense, as the moving party, bears the burden of this motion by a preponderance of theevidence pursuant to R.C.M. 905(c)(1) and (2).FACTS3. PFC Manning is charged with five specifications of violating a lawful general regulation, onespecification of aiding the enemy, one specification of conduct prejudicial to good order anddiscipline and service discrediting, eight specifications of communicating classified information,five specifications of stealing or knowingly converting government property, and twospecifications of knowingly exceeding authorized access to a government computer, in violationof Articles 92, 104, and 134, UCMJ, 10 U.S.C. §§ 892, 904, 934 (2010).4. To date the Government has provided the Defense with twelve (12) pages of Brady materialtaken from an assessment/investigation/working document review by the Office of the NationalCounterintelligence executive (ONCIX), Office of the Director of National Intelligence (ODNI),and the Information Review Task Force (IRTF) of the Defense Intelligence Agency (DIA). SeeAttachment to Appellate Exhibit XXXI.5. Additionally, the Government has provided the Defense with 458 files, totaling 6,905 pages,from the Federal Bureau of Investigation (“FBI”), which, “at a minimum”, contains Bradymaterial.WITNESSES/EVIDENCE6. The Defense does not request any witnesses be produced for this motion. The Defenserespectfully requests this Court to consider the following evidence in support of the Defense’smotion:a. Charge Sheet.b. Government assertions during various R.C.M. 802 sessions.LEGAL AUTHORITY AND ARGUMENT7. The Defense submits that the Government’s obligations under R.C.M. 701(a)(6) and U.S. v.Brady, 373 U.S. 83 (1963), should require it to provide applicable disclosures to the Defenseindependent of other disclosures. That is, this Honorable Court should require the Governmentto separate or identify Brady material due the circumstances of PFC Manning’s case.8. R.C.M. 701(a)(6) and Brady require that the Government disclose to the Defense all evidencethat reasonably tends to negate guilt, reduce the degree of guilt or reduce an accused’spunishment. See also AR 27-26, para. 3.8(d). While the rules and case law do not specificallyrequire the Government to identify what material is Brady, it is clear that, under certaincircumstances such a requirement would be warranted. U.S. v. Skilling, 554 F.3d 529 (C.A. 5thCir., 2009). Indeed, it is well within this court’s discretion to order such. U.S. v. Salyer, 2010WL 3036444 (E.D.Cal.). Case law supports the Defense’s position that, given thecircumstances, specific identification of Brady material is warranted in PFC Manning’s case.9. U.S. v. Hsia, 24 F.Supp.2d 14 (D.D.C. 1998) is instructive on how the Government should goabout fulfilling their obligation under Brady when there is voluminous discovery. There, theaccused was provided with access to 600,000 documents. The court held, “[t]he governmentcannot meet its Brady obligations by providing Ms. Hsia with access to 600,000 documents andthen claiming that she should have been able to find the exculpatory information in the haystack.To the extent that the government knows of any documents or statements that constitute Bradymaterial, it must identify that material to Ms. Hsia.” Id. at 29-30. See also, U.S. v. Rubin, -F.Supp.2d--, 2011 WL 5448066 (S.D.N.Y. 2011).10. The court’s ruling in U.S. v. Salyer also provides guidance. Salyer involved a case withmillions of pages of discovery. The prosecution argued that its discovery obligations weresatisfied by simply disclosing the voluminous documents to the Defense and pointed to severalcases supporting their position that the Government has no duty to identify Brady material.While acknowledging the cases cited by the Government, the court rejected the Government2position and held that Government did have an obligation to both disclose and identify Bradymaterial under the circumstances facing Salyer. The court was particularly persuaded by thesheer volume of discovery, the relatively small size of the Defense team, the accused’s pre-trialconfinement, the lack of parallel civil litigation with overlapping evidence and the lack ofcorporate assistance to sift through volumes of discovery. Id. at 7. See also, U.S. v. W.R. Grace,401 F.Supp.2d 1060, 1080 (D.Mont 2005).11. The factors set forth by the Salyer court were later adopted by the court in U.S. v. Rubin,supra. Rubin involved allegations of conspiracy to illegally rig bids, fix prices and manipulatethe market investment instruments. Id. at 1. There were a total of 210 transactions that allegedlysubstantiated the alleged crimes and the discovery was voluminous. Id. While holding that theprosecution did not need to specifically identify Brady material, the court nonetheless weighedthe factors considered by the Salyer court. In addition to noting that the discovery provided tothe Defense was searchable, the court was also persuaded that the Defense had corporateassistance in the defense, there was “ongoing parallel civil litigation with overlapping documentsand evidence” and there were multiple defendants with “overlapping discovery needs”, theaccused was not in pre-trial confinement, and there was not a small Defense team. Id. at 4.Clearly, the Rubin court adopted the factors set forth in Salyer in determining whether anexception to the general rule was warranted.12. The circumstances of PFC Manning’s case warrant a requirement that the Governmentspecifically identify Brady material. Indeed, each of the factors discussed by the Salyer andRubin courts weigh in favor of such a requirement.a. PFC Manning has been in pre-trial confinement for nearly two years and has been deniedthe opportunity to participate in his defense in a truly meaningful way. PFC Manning has noopportunity to review much of the discovery in this case because the Joint Regional ConfinementFacility (“JRCF”) lacks the SCIF requisite for such review. Indeed, the discovery in question isonly available in Rhode Island and Maryland, both thousands of miles from PFC Manning’slocation in Kansas.b. The discovery provided by the Government is not text searchable. Moreover, thedocuments are not readily available to the Defense, as no member of the Defense team has easyaccess to the documents. Mr. Coombs is required to drive over 30 miles to gain access to thematerial in question, while CPT Tooman can currently only access the material by going TDYfor several days at a cost of thousands of taxpayer dollars.c. There are not multiple defendants, nor is there parallel civil litigation with overlappingdiscovery needs.d. As a Soldier in the U.S. Army, PFC Manning has no corporate assistance with his defense.e. The Defense team is relatively small compared to the Government. The Government hasat least four (4) Officers working full time, one (1) Officer working part time, two (2) legaladministrators and an unknown amount of paralegal support. By contrast, the Defense consistssolely of Mr. Coombs, CPT Tooman, a legal administrator (who is currently in the process of3completing a PCS move) and the newly detailed counsel, MAJ Tom Hurley. Whereas theGovernment attorneys are geographically located in one place, the Defense is spread throughoutthe country with varying levels of access to evidence and PFC Manning.f. The discovery in this case is already voluminous and, presumably, there is more to come.13. There is incentive to rule in favor of the Defense so as to prevent the Government fromburying Brady material in mountains of voluminous discovery. The courts in Hsia and Salyereach warned of the possibility of such a practice. At issue presently are nearly 7,000 pages ofdiscovery, but there are, no doubt, tens of thousands of pages looming on the horizon. Rulingagainst the Defense on this motion creates the incentive for the Government to bury Bradymaterial and force the Defense to sift through stacks of paperwork in order to prepare acompetent defense – all while the Government has actual knowledge of Brady material. This isnot in accordance with the spirit of Brady.14. The Government has already set a precedent for itself when disclosing Brady material. Untilthe FBI documents, the Government had been providing Brady materials separately. When theGovernment specifically identifies Brady material in some instances (like the Government’s first12 page disclosure) and fails to do so in others (like the FBI documents), the implication is thatno Brady material is present when the documents aren’t identified as such.15. The Government has made clear that they are already identifying Brady material as part oftheir due diligence requirement. It would not be overly arduous for the Government tospecifically identify Brady material for the Defense when they are already doing it forthemselves. It would be quite easy for the Government to simply identify Brady material beforeturning documents over to the Defense.1 Any resistance to such a request would only suggestthat either:a) The Government is not actually specifically identifying Brady material, orb) That the Government wishes to place a burden on the Defense so as to gain a tacticaladvantage.16. The circumstances of PFC Manning’s case warrant requiring the Government to identifyBrady material. PFC Manning is a lone accused in pre-trial confinement, he has a relativelysmall Defense team, there is no concurrent civil litigation and much of the voluminous discoveryis either not searchable or not easily accessed by the Defense. The burden of this requirement onthe Government will be minimal and, perhaps most importantly, will ensure that the Governmentdoes not bury Brady material within its discovery disclosures.1Indeed, when the Government expressed concern about the difficulty of comparing original and redacted motions,the Defense voluntarily adopted a system that would make it easier for the Government to meaningfully compare thedocuments.4CONCLUSION17. For the foregoing reasons, the Defense requests this Court require the Government tospecifically identify all Brady material when providing discovery to the Defense.Respectfully submitted,JOSHUA J. TOOMANCPT, JADefense Counsel5

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