Title: Gov Resp to Def Motion for Judicial Notice (Finkel Book), 17 Aug 12

Release Date: 2014-03-20

Text: UNITED STATES OF AMERICAGOVERNMENT RESPONSE TODEFENSE MOTION FORJUDICIAL NOTICE OFEXCERPTS FROM DAVID FINKEL'SBOOK "THE GOOD SOLDIERS"V.Manning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 2221117 August 2012RELIEF SOUGHTCOMES NOW the United States of America, by and through undersigned counsel, andrespectfully requests this Court deny, in part, the Defense Motion for Judicial Notice of Excerptsfrom David Finkel's Book "The Good Soldiers." Specifically, the United States objects to theCourt taking judicial notice that Finkel's book contains a verbatim transcript of the videocharged in Specification 2 of Charge II. The United States does not object to the Court takingjudicial notice that Finkel's book was published prior to the leak of the video charged inSpecification 2 of Charge II.BURDEN OF PERSUASION AND BURDEN OF PROOFAs the moving party, the defense has the burden of persuasion on any factual issue theresolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),United States, Rule for Courts-Martial (RCM) 905(c)(2) (2012). The burden of proof is by apreponderance of the evidence. RCM 905(c)(1).FACTSThe United States stipulates to the facts set forth in paragraphs 3 and 4 of the DefenseMotion. Additionally, the United States stipulates to the fact that David Finkel operated as anembedded reporter with 2-16 Battalion, 4th Brigade Combat Team, 1st Infantry Division whilethe Battalion was deployed to Iraq in 2007. See Def Mot. at 2. The United States also stipulatesto the fact that on 5 April 2010, WikiLeaks published a video taken from an American Apachehelicopter on 12 July 2007, which depicts an engagement that resulted in the death of twoReuters employees. Id.WITNESSES/EVIDENCEThe United States requests this Court consider the referred Charge Sheet in support of itsresponse.1APPELLATE E X H m i T _ g ] ^PAGE R E F E R E N C E D : ^ ^PAGE^OFPAGESLEGALAUTHORITV ANDARGUMENTAjudicially noticed tact "must be one not subject to reasonable dispute in that it is either(l)generally known universally,locally,or in the area pertinent to the event or (2)capable ofaccurate and ready determination by resort to sources whose accuracy cannot reasonably bequestioned." Military RuleofEvidence (MRE)201(b). Judicial notice of tacts serves asasubstitute tor testimonial,documentary,or real evidence. Stephen A.Saltzburg, etal.,^^^^^^^^^^^^.^^.^^^^^^^^^^i^^^^^^201.02^1j(7thed.2011). Additionally,judicial notice promotesjudicial economy because it relievesaproponent from tbrmally proving certain facts thatareasonable person would not dispute. ^^.^The defense requests this Court takejudicial notice ofthe fact that "The Good Soldiers"containsa"verbatim transcript ofthe audio from the video charged in Specifrcation2of ChargeII." Def Mot. at 1. As evidence, the detense provides an excerpt from the book published in^ i ^ ^ ^ . ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ . ^ ^ . ^^^AttachmentAto the Defense Motion. While it appears the excerptdescribes, in narrative tbrm, parts ofthe same engagement captured by the video charged inSpecifrcation2of Charge II, there is no way to determine whether the book excerpt includesa"verbatim" transcript ofthe video if the defense has not provided the Court withatranscript ofthe video. In this case, the defense has failed to provide sufficient evidence to allow the Court tomakeadetermination by "resort to sources whose accuracy cannot reasonably be questioned."MRE 201(b)(2). Accordingly,this Court should deny the defense request to take judicial noticeofthe fact that "The Good Soldiers" containsaverbatim transcript ofthe video charged inSpecifrcation2of Charge II.CONCLUSIONThe United States respectfully requests this Court DENY, in part, the Defense Motion forJudicial Notice of Excerpts from David Finkel's Book "The Good Soldiers." The defense hasprovided no evidence that "The Good Soldiers" contains a verbatim transcript of the videocharged in Specification 2 of Charge II.MORROW'T, JAAssistant Trial Counsel' The defense's recitation of judicial notice law is problematic. The two cases they cite - United States v. Brownand United States v. Spann - do not, in any conceivable way, buttress the propositions for which they are offered.See Def Mot. at 3.I certify that I served or caused to be served a true copy of the above on Mr. David E.Coombs, Civilian Defense Counsel, via electronic mail, on 17 August 2012.IwDK, / Ww/*^/ODEAN MORROW6CPT, JAAssistant Trial Counsel

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