Case Coverage: Al Nashiri Case

October 24 Session #4: DIVO, Part One

By Wells Bennett
Wednesday, October 24, 2012, 12:26 PM

We are supposed to be talking about AE 107, regarding funding from the Convening Authority.  Richard Kammen seeks money to pay for two persons, who will serve as Defense-Initiated Victim/Survivor Outreach (“DIVO”) liaisons.  He emphasizes, at the outset, that the defense in no way faults any victims of the conduct alleged in this case, and that he sympathizes with them deeply.  The lawyer then proceeds not to the Convening Authority's denial of his liaison request, but instead to a parallel matter--   the defense's motion (AE 132, not on the docketing order) to compel the government to produce two DIVO-related witnesses, Tammy Krause and Joy Ehlenfeldt, to testify at today’s hearing on AE 107.

The subject is of interest to the court.  When prompted by Kammen, Judge Pohl asks Mattivi about particular fact witness---Krause---whom the prosecution had agreed to produce but the Convening Authority had disapproved.  How is that possible, the court asks, if the prosecution found the witness's testimony to be relevant and necessary under commission rules?   There's no dispute, if that's correct.  Mattivi himself was confused, he explains, as the prosecutor had arranged for Krause to attend the day’s proceedings.  But he rejects the relevance and necessity of the other sought witness, Joy Ehlenfeldt.  The latter is a family member of a murder victim in Chicago, and reportedly will testify only about her personal experiences.

Reyes rises and says that the government is mistaken: the defense wants Krause to testify as an expert, not a fact, witness; he adds that Krause was approved by Mattivi and his colleagues, but not by the Convening Authority.  That strikes Reyes as odd: the Convening Authority seems to have objected to Krause's testimony on technical grounds, but also didn’t dispute the testimony's bearing on AE132, the defense’s DIVO liaison motion.  Before concluding, Reyes notes that the dispute before Judge Pohl now encompasses not merely Krause, the DIVO expert, but also three other persons---Ms. Loftus, an expert witness in memory, Ms. Ehlenfeldt, and the DIVO liaisons themselves.

Kammen rises briefly, and explains the relevance of Ehlenfeldt's proposed testimony.  , She lived through two murder trials involving her relative, Kammen says, and can explain how DIVO programs helped her during that process.  As for Loftus, she will testify that current commission procedures regarding victim witnesses are not equivalent to the DIVO procedure that the defense proposes now.  Mattivi stands and argues that Loftus’ testimony is irrelevant.  Regarding the other witness, he says the defense’s request must comply with procedural rules---ones that, in the Convening Authority’s view, were not observed.

There’s some more back-and-forth about who should be approved, and how, when Judge Pohl at least comes to decision---sort of.  The court will rule later today on AE 132, the motion to compel witness testimony on AE107.  It will hear AE107 after that.