Military Commissions

How Many Prosecutors Does It Take To Screw In a Light Bulb?

By Benjamin Wittes, Wells Bennett
Tuesday, July 17, 2012, 2:03 PM

The next issue, Judge Pohl announces, is the group of motions surrounding discovery: AO 76, AO 77, AO 85, AO 82, and AO 74.

They start with AO 82, which seeks an accounting of prosecutorial resources.

We're only after generic identification, Kammen argues.

We do not want to know anyone’s names, but instead, just the number of people on the prosecution’s team.  By that, he means not just the number of people seated at the table, but also any and all staff people sitting in the rear of the courtroom or working back in D.C.  The defense lawyer also wants to know job functions and institutional affiliations: what agencies do the prosecution staffers work for?  Defense? Justice? Some other agency?

Our motion proceeds on parallel tracks, so to speak, he adds. According to Kammen, track one consists of the problems created by the Convening Authority. The other matter has to do with transparency.

The defense lawyer starts with transparency.  All we want to do, he says, is to compare taxpayer dollars to taxpayer dollars. If the prosecution has 25 staffers supporting seven detailed lawyers and we have five staffers supporting three detailed lawyers, then let’s compare apples to apples. Enter Judge Pohl: Isn’t the issue your resources, not their resources? Yes, Kammen agrees, but the Convening Authority has been utterly indifferent to our needs. Showing the resource disparity between the two sides will make it much easier to justify our needs. Thus far we know the prosecution has seven detailed lawyers, and nine other people in the courtroom--compared to our five--and that's just in the courtroom. What is the harm in our having this general information? They have not demonstrated any harm in their response. They have just said no, we don’t want to do it. We want to keep it a secret.

Judge Pohl clarifies that Kammen is looking for all counsel and paralegals working on the case full time. Kammen says he wants part time personnel too.

Trial Counsel Mattivi is eager to respond, and first, to correct some misrepresenations in Kammen's presentation. The burden of proof, he says, rests on the defense.  And defense counsel baldly has asserted that the prosecution can summon a vast array of DOJ resources but without going to the Convening Authority. This is false, Mattivi says. Judge Pohl wants to focus on future disparity issues. And  Mattivi says that the defense will gladly exchange information with the defense on resources, but there must be a true exchange. Barring that, he says, all we have is a discovery request from the defense.  The question thus becomes whether the request is proper ---appropriately designed to uncover relevant material and so on --- and here, it is not. That much is borne out by the ABA Guidelines cited by the defense in its papers, argues Mattivi. The provision relied upon by the defense---which, he stresses, is not binding---does not talk about parity between defense and prosecution teams.

There’s just no suggestion that the parties must be identical in membership and resources, Mattivi argues.  In fact, federal precedent is to the contrary: the McVeigh prosecution spent considerably more than the defense in that case.  And, the prosecutor continues, Al-Nashiri’s is just as robustly staffed as the defense was in United States v. Moussaoui.  Again, the burden is on the defense here.  And they have failed to provide the commission with a federal death case in which the defense team had better resources than Al-Nashiri’s has today.  The parity argument, Mattivi adds, cuts in the government’s way---to the extent it is a valid argument at all.  The prosecution, he says, doesn’t have any “memory expert,” but the defense does.  That’s just an aside, though. What matters is that perfect prosecution-defense parity is not required.

Nor is parity evidence at all relevant to mitigation, as defense counsel has suggested.  In Mattivi’s view, mitigation instead is cabined by objective standards---chiefly, those announced by federal and military rules regarding threshold relevance. For his part, Judge Pohl thinks there is a limit to mitigation evidence, but that the boundary line is murky.  No, argues the prosecutor, the boundary is clear: the commission rules say that mitigation must go to the accused’s character, record, or any circumstances of the offense. And prosecutorial resources are simply not relevant to that.

Mattivi offers a final word about resources.  All such information, Mattivi says, is subject to open records requests.  If they really want to know what we're spending, he says, they can look it up. If they want to exchange information, we're happy to do that. But if we're going to be subject to a comparison, it has to be a reciprocal exchange. He concludes by emphasizing that any suggestion that the prosecution is trying to keep its resources secret is absolutely false.

Kammen returns to the podium, and says again that he wants to compare apples to apples---that is, to identify who on each side is being paid with taxpayer dollars.  We are happy to exchange such information, he says.  Then defense counsel and Judge Pohl trade arguments about how, generally speaking, the prosecution's resources could be relevant, so long as the defense has not disclosed its own resources.

Then, all of a sudden, peace seems to break out.  Judge Pohl says he could grant a request for discovery into prosecution resources in this case, with a reciprocal disclosure of defense resources to the prosecution--including non-taxpayer-funded resources.  The parties then agree in principle to swap this information, and set a schedule to do so. And while the agreements runs aground over whether investigators are inside or outside of the disclosure, Judge Pohl resolves that by leaving them out for now but allowing the defense to file another motion for that information if it chooses.