Title: Def Motion to Compel Discovery #3, 17 Aug 12

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATESDEFENSE MOTION TOv. COMPEL DISCOVERY #3MANNING, Bradley E., PFCU.S. Army.Headquarters and Headquarters Company, U.S.Army Garrison, Joint Base Myer-Henderson Hall,Fort Myer. VA 2221]I7 August 2012RELIEF SOUGHTI. In accordance with the Rules for Courts Martial (RC M) 701(a)(2) and 905(b)(4), Manual forCourts-Martial (MCM), United States, 2008; Article 46, Uniform Code of Military Justice(UCMJ), l0 U.S.C. 846; and the Fifth and Sixth Amendments to the United StatesConstitution, the Defense respectfully requests that the Court compel the requested discovery.Speci?cally, the Defense requests that the Court order the Government to produce the remaining1,290 emails that it obtained from Marine Corps Base Quantico (MCBQ) regarding theconfinement conditions of PFC Manning.BURDEN OF PERSUASION AND BURDEN OF PROOF2. As the moving party, the Defense has the burden of persuasion. RCM Theburden of proof is by a preponderance of the evidence. RCM 905(c)(l EVIDENCE3. The Defense does not request any witnesses be produced for this motion. The Defenserequests that this Court consider the following evidence in support of this motion:a) Attachment A (Govemment?s Preservation Request, dated 28 April 201 b) Attachment (Response by Quantico indicating all electronic correspondence has beenprovided to the trial counsel, dated 20 December 20] Attachment (Government Discovery Response, dated 14 August 2012);Attachment (Email from MAJ Ashden Fein, dated 26 July 2012);Attachment (Email from MAJ Ashden ein, dated 27 July 2012); andAttachment (Email from MAJ Ashden Fein, dated 14 August 2012).3333FACTS4. On 28 April 2011, the Government submitted a ?request for prudential search andpreservation of information? to Col. Daniel Choike, the Commander of Quantico. SeeAttachment A. The document submitted by MAJ Fein requested Col. Choike to ?take any and1 EXHIBIT PAGE REFERENCED: all reasonable and necessary steps to preserve any information held by your command whichconcerns or references PFC Manning? and secondly ?that your command conduct a thorough andcomprehensive search of its records for information which relates to PFC Manning?scon?nement at the Quantico Brig.? Id. In August of 201 1, the Government began receivingdocumentation responsive to its preservation request. See Attachment C.5. On 20 December 2011, LtCol. Christopher M. Greer, the Staff Judge Advocate for Col.Oltman, confirmed that ?all relevant electronic correspondence, electronic ?les and hard copydocumentary evidence regarding the con?nement of PFC Manning in the possession of MarineCorp [B]ase Quantico of?cial[s] have been provided. Trial counsel were (sic) permitted to viewand copy all relevant ?les maintained by the Quantico Pretrial Con?nement Facility.? SeeAttachment B.6. The Government began providing documentation related to PFC Manning?s con?nement atQuantico in October of 201 1. Based upon the volume of the information provided, the Defensebelieved that this was the full extent of the information the Government had from Quantico.7. On 25 July 2012, almost a year after the Government ?rst began receiving documentationfrom Quantico, and almost seven months after receiving the last of the Quantico documentation,the Government started reviewing the emails that it had received from Quantico. SeeAttachment C. According to the Government, it started reviewing these emails ?in preparationfor the defense Article 13 motion.? Id. 4. The Article 13 motion, however, had been on the casecalendar since this case was referred. The established deadline for the Defense to ?le the Article13 motion was 27 July 2012. Additionally, the Defense had already advised the Governmentthat the Article 13 motion would be a very and involved motion, totaling over 100 pages.In fact, the case calendar had accommodated the Govemment?s request for an additional week torespond to the motion due to the anticipated length of the motion.8. Once the Government elected to review the Quantico documentation, it reviewed a total of1,374 emails on 25 and 26 July 2012. 1d,, see also, Attachment F. On 26 July 2012, theGovernment selected 84 emails that it believed were ?obviously material to the preparation of thedefense? and produced them to the Defense. See Attachment D.9. On 27 July 2012, the Defense noti?ed the Court that MAJ Fein had sent, at 21 15 on 26 July2012, 84 separate emails which depicted high level discussions at Quantico concerning PFCManning?s custody status. The Court held an RCM 802 conference on 27 July 2012 to discussthe need for a continuance in the consideration of the Article 13 motion.10. As a result of the Govemment?s late discovery, the Defense requested a continuance of theproceedings in order to review and incorporate information from the 84 emails into its Article 13submissions; to interview (and re-interview) witnesses based on information contained therein;and to ?le a supplemental Article 13 witness list. On 1 August 2012, the Court granted theDefense?S request. ARGUMENT11. The emails from Quantico are in the possession, custody, and control of the military and fallwithin RCM 701(a)(2). While the Government has turned over a small fraction of this material,84 emails, it has failed to turn over any of the remaining 1,290 emails which are ?regarding theconfinement of PFC Manning? and were turned over by Quantico in response to MAJ Fein?s?prudential search and preservation? request. See Attachments A and B.12. RCM 701(a)(2)(A) provides that, after service of charges, upon request of the Defense, theGovernment shall permit the Defense to inspect:Any books, papers, documents, photographs, tangible objects, buildings, orplaces, or copies of portions thereof, which are within the possession, custody,or control of military authorities, and which are material to the preparation ofthe defense or are intended for use by the trial counsel as evidence in theprosecution case-in-chief at trial, or were obtained from or belong to theaccused.(emphasis supplied).13. The Government has previously maintained that if an organization is subject to a militarycommand, then this factor controls the determination of whether materials are within thepossession, custody, or control of military authorities. See Appellate Exhibit XLIX. The Courthas held that ?the defense is entitled to disclosure of matters known to the trial counsel or in thepossession of military authorities.? See Appellate Exhibit CXLVII, p. 4. Quantico is subject to amilitary command. Accordingly, the Government has an obligation to turn over documents thatare material to the preparation of the defense.14. As the Defense has argued before, the case law reaffirms that ?material? under RCM701(a)(2)(A) is not a difficult standard to satisfy. In United States v. Cano, 2004 WL 5863050at *3 (A. Crim. Ct. App. 2004), our superior court discussed the content of the ?materiality?standard under R.C.M. In reviewing AE in camera, the military judge said that he examined therecords and AE contained ?everything . . . [he] thought was even remotelypotentially helpful to the defense." That would be a fair trial standard, but ourexamination finds a great deal more that should have been disclosed as ?materialto the preparation of the defense.? We caution trial judges who review suchbodies of evidence in camera to do so with an and mind-set of a defensecounsel at the beginning of case preparation. That is, not solely with a view to thepresentation of evidence at trial, but to actually preparing to defend a client, sothat the mandate of Article 46, UCMJ, is satis?ed.See also United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004) (?The defense had a right tothis information because it was relevant to SA M's credibility and was therefore material to thepreparation of the defense for purposes of the Govemment?s obligation to disclose under R.C.M. added); United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008)request of the defense, the trial counsel must permit the defense to inspect anydocuments within the custody, or control of military authorities that are ?material to thepreparation of the defense.? R.C.M. Thus, an accused?s right to discovery is notlimited to evidence that would be known to be admissible at trial. It includes materials thatwould assist the defense in formulating a defense strategy?).15. On 8 December 2010, the Defense requested ?[a]ny and all documents or observation notesby employees of the Quantico con?nement facility relating to PFC Bradley Manning.? SeeAttachment E. In response to the Defense?s request, ?the prosecution requested Quanticopreserve all documentation and their emails.? Id.16. In spite of receiving the 1,3 74 emails in response to its preservation request, the Governmentelected to permit these emails to collect dust in one of its ?le cabinets until two days before theDefense?s Article 13 motion was due. In defending its conduct, the Government will likely try toassert that it did not believe that an emails involving the Brig OIC and Brig personnel, or emailsconcerning PFC Manning?s con?nement status were ?documents or observations notes byemployees of the Quantico con?nement facility? within the meaning of the Defense?s discoveryrequest. The Government will likely try to convince the Court that when it was reviewing theemails for Giglio and Jencks under RCM 914, it came across information that was obviouslymaterial to the preparation of the Defense and then turned the information over as soon as it wasaware of its existence. Such a position is untenable. These emails are clearly ?documents byemployees of Quantico con?nement facility relating to PFC Manning? and should have beenproduced a long time ago pursuant to the Defense?s discovery request. Indeed, the Governmentitself recognizes that these documents are discoverable under RCM 701(a)(2) as it indicates thatthese emails are ?obviously material to the preparation of the defense.?17. The Government was clearly aware of the fact that the Defense believed PFC Manning?scon?nement conditions were unnecessarily onerous. PFC Manning had repeatedly requested tobe removed from MAX and P01. Additionally, the Defense made numerous requests of theUnited States Army Staff Judge Advocate?s Of?ce for the Military District of Washington toassist in removing PFC Manning from MAX and P01. In the fall of 201 0, Mr. Coombs and MAJFein had several telephone conversations about the onerous conditions of PFC Manning?scon?nement. MAJ ein assured Mr. Coombs that he was looking into the issue and would viewit as one of his highest priorities. See Defense Article 13 Motion, p. 47. PFC Manning wasnever taken off of MAX or POI status. And it is clear that MAJ Fein and the Government didnot advocate for the rights of PFC Manning during this period despite repeated protestationsfrom the Defense that PFC Manning was being subjected to illegal pretrial punishment.18. Despite being aware of the impending Article 13 motion, the Government inexplicablychose to wait until two days before the ?ling of the Defense?s Article 13 motion beforereviewing documents that it had been holding for close to a year. This conduct is either yetanother example of that lack of due diligence on the Government's part, or a conscious decisionby the Government to gain a tactical advantage in the Article 13 motion.19. The requested emails are clearly material to the preparation of the Defense. Their volumealone proves the extent of involvement by individuals outside of the Quantico Brig in thecustody status and classi?cation of PFC Manning. This undeniable fact clearly supports theDefense?s argument that the decision to keep PFC Manning in MAX and POI for over ninemonths was not based upon a legitimate non-punitive basis. As such, all 1,374 emails arematerial to the preparation of the defense.20. Moreover, it de?es logic to believe that there are nearly 1,300 emails out there dealing withPFC Manning?s con?nement that are not somehow relevant and helpful to the preparation of thedefense. With the exception (perhaps) of purely logistical issues,? it would seem that any emailreferencing PFC Manning?s con?nement is per se material to the preparation of the defense?21. One additional note: the Government has indicated that it has produced emails that are?obviously? material to the preparation of the Defense. This is not the appropriate standard. TheGovernment must turn over all documents which are material to the preparation of the Defense as in relevant and helpful. The Defense believes, based on the sheer volume of emails notproduced, that the Government has not done so.22. The Government has had anywhere from 7 months to over a year to review the 1,374 emailsit received from Quantico. The Defense has not had equal access to this same information, or theability to adequately factor this information into the Defense?s Article 13 motion. The requestedinformation is material to the preparation of the defense, and should be turned over immediately.To permit the Government to hold onto the remaining 1,290 emails will only reward its lack ofdue diligence, and result in the Defense being unable to demonstrate the full extent of the Article13 violation.CONCLUSION23. Under R.C.M. 701(a)(2), the Court should conclude that the remaining 1,290 emails beingheld by the Government from Quantico are within the ?possession, custody, or control? of theGovernment and are material to the preparation of the Defense. The Court should compel theGovernment to produce these emails immediately to the Defense in order to avoid any additionalrequirement for a continuance of the Article 13 motion.Respectfully submitted,DAVID EDWARD COOMBSCivilian Defense CounselFor instance, emails concerning PFC Manning?s movement.2 The Government has proved that it is not adept at determining what is relevant or material to the preparation of theDefense. The Court should recall that the Government did not believe damage assessments were relevant. Further,the Government did not believe that the FBI investigation pertaining to PFC Manning was relevant. These examplesshow that the Govemment?s incredibly narrow view of what is relevant is not in accord with what is actuallyrelevant.

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