Title: Def Motion to Compel Production of Wit for Art 13 Motion, 24 Aug 12

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATES DEFENSE MOTION TOv. COMPEL PRODUCTIONOF WITNESSES FORARTICLE 13 MOTIONMANNING, Bradley E., PFC U.S. Army, Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer-Henderson Hall, DATED: 24 August 2012Fort Myer, VA 2221 RELIEF SOUGHT1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rulefor Courts Martial (RCM) 703(b)(l) requests this Court to compel production of the below listedwitnesses .BACKGROUND2. The Defense requests that the Court consider the background facts provided in AppellateExhibit 206 and in the Defense Supplemental Article 13 Motion filed on 24 August 2012.3. The Government provided 84 emails to the Defense on 26 July 2012. After having anopportunity to review these emails, the Defense identi?ed additional witnesses for the Article 13motion. The Defense obtained the latest available contact information for each of the witnesseson either Army Knowledge Online (AKO) or the Joint Enterprise Directory Services (JEDS).However, due to retirements, deployments, or just outdated information on AKO or EDS theDefense was not able to coordinate interviews of some of the witnesses.4. On 14 August 2012, the Government provided the Defense with its witness list for the Article13 motion. The Government listed 17 witnesses that it intended to call for the purposes of themotion.5. On 15 August 2012, the Defense filed its supplemental Article 13 witness list. By that point,the Defense had narrowed its witness list to 14 additional witnesses. Seven of the identi?edwitnesses were also on the Govemment?s witness list. As such, the Defense listed thesewitnesses by name and requested that the Government stipulate to their obvious relevance andnecessity given the fact the Government planned to call them as well.6. For the other seven witnesses not on the Government?s witness list, the Defense provided asynopsis of their expected testimony under RCM The proffer clearlydemonstrated the relevance and necessity for each of the following requested witnesses a) LtGen. George J. b) Col. Christopher Miner;c) Col. (R) Daniel Choike;d) CDR Han Bui;e) Capt. Mary Neill;f) LtCol. Christopher Greer; andg) CPT John Haberland;7. On 22 August 2012, the Government provided its response to the additional requestedwitnesses by the Defense. The Government denied production of LtGen. Col. Miner,Capt. Neill, LtCol. Greer, and CPT Haberland. Additionally, the Government refused tostipulate to the relevance and necessity of its own listed witnesses for the purposes of RCM 703.As such, the Government denied the production of COL Carl Coffman, CWO5 Abel Galaviz,CWO4 James Averhart, CWO2 Denise Barnes, Craig Blenis, Brian Papakie, andWilliam Fuller.ARGUMENTA. The Government is Acting in Bad Faith in Contesting the Relevance and Necessityof Its Own Witnesses8. The Government is once again proceeding in bad faith in contesting the relevance andnecessity of numerous facially relevant witnesses. The Defense has never heard of a scenariowhere the Government has contested the relevance and necessity of its own witnesses. How canit be that a witness is relevant and necessary for the Government, but not equally relevant andnecessary for the Defense? The Government opposes production of these witnesses, apparentlybecause it believes the Defense did not comply with RCM and United States v.Rockwood, 52 M.J. 98 (C.A.A.F. 1999). RCM 703(c)(2) is intended to be administrative innature such that the Government can arrange to actually contact these witnesses and bring themto court. As stated in the Analysis to RCM 703:[T]he trial counsel is responsible for the administrative aspects of production ofwitnesses. Thus, . . . the defense submits its list of witnesses to the trial counsel sothat the latter can arrange for their production. The trial counsel stands in aposition similar to a civilian clerk of court for this purpose. Because most defenserequests for witnesses are uncontested, judicial economy is served by routing thelist directly to the trial counsel, rather than to the military judge first. This alsoallows the trial counsel to consider such alternatives as offering to stipulate ortake a deposition, or recommending to the convening authority that a charge bewithdrawn . . . . Further, it allows arrangements to be made in a more timelymanner, since the trial counsel is usually more readily available than the militaryjudge. Only if there is a genuine dispute as to whether a witness must beproduced is the issue presented to the military judge by way of a motion. Drafters? Analysis, Manual for Courts-Martial, United States (MCM), A21-36 (2008added). Is the Government truly saying that there is a ?genuine dispute? as towhether witnesses that the Government itself plans to call must be produced? As with so manyother issues in this case, the lack of good faith on the part of the Government is troubling.9. The Defense believes that the witnesses on the Govemment?s witness list are relevant andnecessary for painfully obvious reasons:a) CWO4 James Averhart and CWO4 Denise Barnes. Both were the Of?cers in Charge ofthe Brig during the relevant time period. Both (at least in theory) made the custodialclassi?cation determinations pertaining to PFC Manning. Both will testify regardingtheir classi?cation determinations, their disdain for, and questioning of, medical opinions,and their knowledge of LtGen. involvement in the case. Both will testify aboutthe speci?c instances that PFC Manning was placed on Suicide Risk or where his specialhandling instructions were increased.b) COL Carl Coffman. COL Coffman was the Special Court-Martial Convening Authority.He will testify about what he knew about PFC Manning?s con?nement conditions andwhy he did not ask Quantico of?cials to remove PFC Manning from POI. He will alsotestify about whether he knew of LtGen. involvement in the case.c) Craig Blenis, Brian Papakie, and William Fuller. All theseindividuals sat on PFC Manning?s Board and will testify why they maderecommendations to retain PFC Manning in MAX and on POI despite doctors?recommendations to the contrary. All these individuals will testify that they knew aboutLtGen involvement in the case. Papakie will testify about his homophobiccomment about PFC Manning?s ?panties.? Blenis will testify why he made thecomment to the effect of ?We felt like being dicks.? Fuller will testify about theharassment of PFC Manning during recreation call on 18 January 2011.d) CWO5 Abel Galaviz. He will testify about his ?independent? investigation at the behestof Col. Choike. He will also testify that he was involved in PFC Manning?s con?nementsince he arrived at Quantico and was copied on numerous emails prior to being assignedas an ?independent? investigator as part of the Article 138 Complaint.B. The Additional Witnesses Denied By the Government Are Relevant and Necessary10. The Defense is entitled to production of witnesses whose testimony ?would be relevant andnecessary? to a matter in issue. RCM 703 In determining relevance of the witness, a courtmust turn to the Military Rules of Evidence. See, United States v. Breeding, 44 M.J. 345,351 (C.A.A.F. 1996). A witness is necessary when the witness is not cumulative, and when thewitness would contribute to a party?s presentation of the case in some positive way on a matter inissue.? United States v. Credit, 8 M.J. 190, 193 (CMA 1980); see also United States v. Williams,3 MJ. 239 (C.M.A. 1977). l. The Defense requests production of LtGen. George Capt. Mary Neill, LtCol.Christopher Greer, Col. Christopher Miner, and CPT John Haberland.l2. LtGen. George In its original witness request, the Defense stated the relevance andnecessity of LtGen. lynn?s testimony:LtGen. George J. Director for Joint ForceDevelopment, The Joint Staff J-7. LtGen. is the former Commanding General ofMarine Corps Combat Development Command. As the Commanding General, he wasthe senior rater for Col. Daniel Choike, the former Marine Corps Base Quantico (MCBQ)Commander and Col. Robert Oltman, the former MCBQ Security Battalion Commander.LtGen. will testify about requiring the Quantico Brig to report to him, for hisapproval, regarding any change in PFC Manning?s handling instructions or assignmentstatus. LtGen. will testify that prior to any final action taken place with changingPFC Manning"s custody status, he wanted to be able to determine the political impact,media interest, legal rami?cations, and senior leadership reactions. LtGen. willtestify that he received frequent reports, at least once a week, on PFC Manning and hiscustody status. LtGen. will testify that he first made inquiries into PFC Manningwithin a week of his arrival at MCBQ. He will testify that he was concerned about thesuicide risk of PFC Manning. He will testify that the Brig had a suicide on 31 January2010. Based upon the previous suicide he directed Col. Choike and Col. Oltman toimpress ?upon all who come in contact with Pvt. Manning the absolute necessity ofkeeping a close watch on His Manning] life has completely fallen apartwhich makes him a strong candidate (from my perspective) to take his life.? Finally,LtGen. will recount how he became involved in the day to day issues regardingPFC Manning.13. The Government contests the relevance and necessity of LtGen. testimony largelyby attempting to mislead the Court. The Government writes:Col Choike?s and Col Oltman?s proffered testimony makes LtGen testimonycumulative and unnecessary. The Defense has not offered any evidence to support itstheory that LtGen issued any orders regarding the accused?s classi?cation andstatus. For example, the email cited by the Defense is LtGen response to anarticle in the New York Times and simply describes LtGen concern for theaccused?s safety. Additionally, Col Choike, Col Oltman, W04 Averhart, and CWO2Barnes will testify that LtGen was not involved with the day?to-day issuesregarding the accused nor did LtGen give any instructions concerning theaccused?s classification and status. See Government Response to Defense WitnessRequest: Article 13. p. 1.l4. The Defense does not understand the Govemment?s ?cumulative? argument. TheGovernment states that Col. Choike, Col. Oltman, CWO4 Averhart and CWO2 Barnes will alltestify about LtGen. involvement in PFC Manning?s custody status. Id. lt seemsobvious that LtGen. can best speak to LtGen. involvement in the case and theother witnesses will be used to either corroborate or discount this testimony. The Defense?s position is that PFC Manning?s custody status in this case was ultimately determined by LtGen.Everyone below him in the chain of command was putting LtGen. guidance intoeffect. How is it, then, that LtGen. testimony is cumulative?15. Further, the Government?s statement that the Defense ?has not offered any evidence tosupport its theory that LtGen. issued any orders regarding the accused?s classi?cationstatus? is ludicrous. In an email from Col. Choike to Col. Oltman (which was provided to theDefense by the Government), Col. Choike clearly states:You and I supporting/concurring with the Brig decisions that changehandling instructions or assignment status, without passing that info to CG[LtGen. for consideration, is no longer acceptable. We/you arenot going to get anything in writing from CG [LtGen. if herejects/modi?es a recommendation. Memo?s for the record can be discussed morebetween you and I, in an effort to address your concerns about properdocumentation/?le keeping.Summary - #1 - yes adhere to the chain of command, and hopefully youunderstand why that didn?t happen right now. #2 Yes - recommendationsforwarded to me for discussion and concurrence and then recommendationforwarded to CG, [LtGen. before implementation. I will notblindly forward a recommendation to the CG, instead I?ll discuss it with you soyou will know exactly what I forward. #3 Non-concurrence in writing - we needto discuss and determine the best way to document decision/?nal actions for therecord. CG [LtGen. wants to be able to determine political impact, mediainterest, legal rami?cations, and senior leadership reactions, and can?t do sowithout him being in the loop upfront.See Attachment A to Defense Supplemental Article 13 Motion, Bates Number 00449914 through00449915. It is abundantly clear from this one email alone that LtGen. was the one whowas ?calling the shots.? Decisions that ?change handling instructions or assignment status? wereto be made ultimately by LtGen. LtGen. in making these determinations, wantedto be able to ?determine the political impact, media interest, legal rami?cations, and seniorleadership reactions? about anything involving PFC Manning?s con?nement status. Id. In lightof just this one email (not to mention the others that the Government has provided), it is a ?at outfalsehood to say that ?LtGen did not give any instructions concerning the accused?sclassi?cation and status.? The Government also contests that LtGen was involved in day-to-day issues regarding the accused. Apparently, the Government must have missed the email toLtGen. explaining that Defense counsel had called the Brig after hours, or the email whereLtGen. asked whether PFC Manning?s visitors who had been denied entrance to Quanticohad been called a cab. See Attachment A to Defense Supplemental Article 13 Motion, BatesNumber 0044933-36.16. It is obvious why the Government is making this feeble attempt to contest the relevance andnecessity of LtGen. testimony it is rather embarrassing to have to call a three-stargeneral and explain why he was giving guidance to those in his chain of command that he wouldultimately call the shots when it came to PFC Manning. However, in light of these emails, thereis no witness who is more relevant and necessary for production than LtGen. 17. Capt. Mary Neill. Capt. Neill is the former commander of the Naval Health Clinic atMCBQ. She will testify that Col. Choike ordered her to provide him with a weekly update onPFC Manning. She will testify that she complied with this order by providing at least weeklyreports to C01. Choike. Capt. Neill will testify that the Brig would provide her witha weekly report that she would then add to for the bene?t of Col. Choike and LtGen. Within the report, she would discuss the results of the behavioral health visits, therecommendation of the Brig the nature of PFC Manning?s custody status, and PFCManning?s overall affect and mood. She will testify that she was aware of the Brig Capt. William Hocter and COL Robert Malone?s consistent recommendations to remove PFCManning from POI watch. Despite their frequent recommendations, PFC Manning was neverremoved from POI. Capt. Neill will testify that Col. Oltman had come to her to express his lossof trust in the recommendations of Capt. Hocter. She will testify that Col. Oltman blamed Capt.Hocter for failing to identify the individual who committed suicide in January of 2010 as apotential suicide risk. She will testify that she was aware that the Brig had displayed signi?cantconcern and was very anxious about the high level of visibility regarding PFC Manning and theassociated risks. Capt. Neill believed that the Brig staff would bene?t from having some of theirquestions and concerns addressed by her medical staff. She will also testify that she informedCol. Choike and Col. Oltman that it was her opinion that the continuation of P01 was notdetrimental to PFC Manning. Capt. Neill will testify that she was also aware of Capt. Hocter?srepeated requests for the Brig to allow PFC Manning the opportunity to exercise in his cell. Shewill testify that Capt. Hocter had noted a decline in the physical conditioning of PFC Manningdue to his limited opportunities to be out of his cell. She also will testify that she took it uponherself to have a face to face meeting with the Capt. Brian Moore, the former Defense forensicexpert, to inform him that his access to PFC Manning was only through the defensecounsel channels, and that since his appointment to the Defense team, he was no longer part ofbehavioral health provider team for PFC Manning.18. The Government has denied production of Capt. Neill on the following basis:The United States denies production of CAPT Neill. The Defense?s proffered testimonyof CAPT Neill is not relevant and necessary under RCM 703(b)(1). CAPT Neill is adentist and was the commander of the Naval Health Clinic at MCBQ. CAPT Neill?stestimony is irrelevant because she did not provide or medical care to theaccused. CAPT Neill did not proffer an opinion on the accused?s POI status orclassi?cation. During a telephonic interview with the prosecution in response to theDefense Request, CAPT Neill stated that she did not recall Col Oltman blaming CAPTHocter for failing to identify the individual who committed suicide in January 2010 as asuicide risk. Col Oltman will be a witness and can testify about his own thoughtsregarding CAPT Hocter?s recommendations, thereby making CAPT Nei1l?s testimonycumulative and unnecessary. CAPT Neill stated that she suggested the parties gather todiscuss the process of determining the accused?s status and classi?cation, but she did notoffer opinions regarding the actual decisions of what the accused?s status andclassi?cation should have been. See Government Response to Defense Witness Request:Article 13, p. 1-2.19. It is not true that Capt. Neill did not ?proffer an opinion on the accused?s POI status.? Capt.Neill was tasked with taking information from Capt. Hoctor and Col. Malone and passing it upthe food chain to Col. Oltman (where ultimately it was passed onto Col. Choike and LtGen.The fact that Capt. Neill was a dentist raises questions as to why she was entrusted to bethe ?broken telephone? conduit. It is indeed strange that opinions are ?ltered througha dentist up the chain of command. In one instance, on 2 February 201 1, after Capt. Neillforwarded Col. Malone?s recommendation to remove PFC Manning to Col. Oltman, Col. Oltmanwrites, ?The Dr. Recommends removal from POI but stats [sic] that the risks and bene?ts ofcontinued POI are not detrimental or at least that?s how I read what he wrote.? SeeAttachment A to Defense Supplemental Article 13 Motion, Bates Number 00449840. Then CaptNeill weighs in, ?Concur that review states that remaining in continuation of P01 is NOTdetrimental to detainee.? Id. Why is Capt. Neill, a dentist, weighing in on how she interprets thedoctor?s recommendation? Why is Capt. Neill, a dentist, tasked with the role of keeping Col.Oltman in the loop?20. LtCol. Christopher Greer. LtCol. Greer will testify that he was present for the meetingwhere Col. Oltman stated that PFC Manning would remain in his current status MaximumCustody and P01 unless and until he received instructions from higher authority to the contrary.LtCol. Greer will testify that he did not attempt to intervene or correct Col. Olman when he toldCapt. Hocter something to the effect of will not have anything happen to Manning on mywatch. So, nothing is going to change in his custody status. He won?t be able to hurt himselfand he won?t be able to get away, and our way of making sure of that is that is he will remain onMaximum Custody and P01 indefinitely.? LtCol. Greer will testify that Capt. Hocter becameupset and expressed his concern about holding PFC Manning in POI when there was nobehavioral health justi?cation for such a status. He will testify that Capt. Hocter did not supportthe P01 status, but was told that his recommendation was just a part of the overall classi?cationassessment. He will testify that Col. Oltman told Capt. Hocter that he should just make hisrecommendations and that they (the con?nement facility) would do what they wanted to do.LtCol. Greer will also testify that he provided regular updates to C01. Choike, Col. Oltman, andLtGen. SJA (Col. Christopher Miner) about PFC Manning. Finally, LtCol. Greer willtestify that he was aware of a request by the Defense to the Convening Authority, COL Coffman,to remove PFC Manning from POI. He will testify that he informed Col. Choike and Col.Oltman to ?stand by for heavy rolls if the CA decides to request the Base commander to reviewand consider removing Manning?s POI status.? He will also testify that he informed the Armythat ?unless you want to run our Brig, I think you undercut your own legal position if youactually recommend that the P01 status be removed. We are the jailors, either you trust us oryou don?t. If you don?t, then move him.? LtCol. Greer also will testify that he informed theprosecution that ?we (the marines) have the day to day responsibility for Manning and if they(the Army) are unhappy with Manr1ir1g(?s) current status, then someone in the Army needs totake custody of him or relive (sic) us of the responsibility of his welfare.? He will further testifythat he ?reiterated our concern (the marines) that if something goes wrong, there is not a singleArmy person that would be held responsible or found to be accountable as long as he stays withus.? LtCol. Greer will testify that he was included on emails where LtCol. Troy Wright, theHead of Law Enforcement and Corrections Branch for Headquarters, U.S. Marine Corps, stated7 ?to take measures that are consistent with suicide watch, but not of?cially place that person in asuicide watch status is inconsistent with the way we are supposed to do business.?21. The Government resists producing LtCol. Greer on the following basis:The Defense has not presented any evidence demonstrating that LtCol Greer possesses aunique perspective. The Defense proffers testimony from both Col Oltman and CAPTHocter that they will testify about their own statements and what other statements eachheard during meetings; therefore, LtCol Greer?s testimony is cumulative andunnecessary. LtCol Greer?s testimony is also irrelevant because LtCol Greer did notmake any determinations regarding the accused?s classi?cation and status during theaccused?s con?nement. See Government Response to Defense Witness Request: Article13, p. 2.22. The test is not whether LtCol. Greer possesses a ?unique perspective? the test is whetherhis testimony would contribute to the Defense?s presentation of the case in some positive way ona matter in issue.? United States v. Credit, 8 M.J. 190, 193 (CMA 1980); see also United Statesv. Williams, 3 MJ. 239 (C.M.A. 1977). The Defense submits that LtCol. Greer will corroborateDr. Hocter?s recollection that he very clearly and emphatically stated that PFC Manning shouldnot be on POI from a perspective. He will also testify that he relayed the contents ofthis meeting to trial counsel (presumably MAJ Fein), such that MAJ Fein was also aware thatPOI was not recommended from a perspective and was on notice of Article 13 issues.LtCol. Greer will also testify that he wrote an email recommending that the Army not make afuss about these issues lest is be ?prepared for heavy rolls.? See Attachment A to DefenseSupplemental Article 13 Motion, Bates Number 0044993 8-9. LtCol. Greer will also testify thathe knew about LtGen. involvement from Day 1 in PFC Manning?s case.23. Col. Christopher Miner. He will testify that he was the SJA for LtGen. He willtestify that he received regular briefs from LtCol. Greer, Col. Oltman, and Col. Choike regardingPFC Manning. Based upon the briefs he received from others, Col. Miner would provide adviceto LtGen. regarding PFC Manning. Col. Miner was included upon emails where Col.Oltman informed the command that the Brig OIC, CWO4 Averhart, was holding PFC Manningon Suicide Risk (SR) after the mental health professionals had recommended his status bechanged from SR to Prevention of Injury (POI). Col. Miner will testify that he was aware of thelevel of involvement by LtGen. in the custody status of PFC Manning.24. The Government resists producing Col. Miner because it believes his testimony iscumulative and unnecessary and that others will testify regarding the involvement of LtGen.See Government Response to Defense Witness Request: Article 13, p. 2. Col. Miner isneither cumulative nor unnecessary. He is clearly involved in the discussions concerning PFCManning?s custody status and the guidance provided by LtGen. to his subordinates. Assuch, Col. Miner is a relevant and necessary witness.25. CPT John Haberland. He will testify that he acted as the conduit between the Army andMarines regarding the confinement of PFC Manning. Specifically, he will testify that hecollected information in order to address a possible Article 13 motion by the Defense, andcoordinated responses to the Defense regarding the con?nement restrictions imposed upon PFCManning. CPT Haberland will testify about how the Army knew of the manner in which PFCManning was being held at the multiple complaints by PFC Manning?s civilian counselregarding the custody conditions; PFC Manning?s multiple Article 138 complaints; and PFCManning RCM 305(g) request to COL Coffman to either remove him from pretrial con?nementor direct his removal from P01.26. The Government resists producing CPT Haberland on the basis that Haberland was amember of the prosecution team during the accused?s con?nement at the Brig at MCBQ. CPTHaberland?s comments and writing are work product.? See Government Response to DefenseWitness Request: Article 13, p. 2. The Government has provided the Defense with emailswritten by CPT Haberland. Thus, to the extent that privilege exists, it has been waived withrespect to these emails. Moreover, the Defense will not be inquiring into attorney work product.Instead, the Defense will inquire about the extent of the Army?s knowledge of PFC Manning?scon?nement conditions.Respectfully submitted,DAVID EDWARD COOMBSCivilian Defense Counsel

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