Just about every members trial is preceded by motions practice to set the ground rules.  The case of United States v. McCabe is no exception.  In addition to denying the UCI motion that I discuss below, the military judge in the case — CAPT Moira Modzelewski — ruled on several motions today to set the stage for the trial to come.

The first motion was a defense challenge to the accuracy of translation during a deposition of Ahmed Hashim Abed, the detainee (and suspected mastermind of the murders of four Blackwater contractors in Fallujah in 2004) SO2 McCabe is accused of hitting.  Haytham Faraj, one of So2 McCabe’s civilian defense counsel, noted errors in the interpretation during the deposition.  For example, a question about whether Abed worked for the Sunni faith was translated simply as, “Do you work?”  In another instance, 0800 was mistranslated as “2 to 3.”  Lead prosecutor LCDR Jason Grover [familiar disclosure] argued that the defense raised its objection too late.  Under R.C.M. 702(h)(2), the Government argued, any problems with translation at the deposition should have been raised at the deposition.  Mr. Faraj countered that the defense was no doubt hamstrung at the deposition by a translator as bad as the prosecution’s translator.  After taking the issue under advisement, the military judge ultimately ordered the Government to secure the services of an Arabic translator for the defense as an expert consultant to essentially prepare a new transcript of the deposition and, if necessary, to testify as a defense witness.  She held that R.C.M. 702(h) contemplates that all of the counsel understand the proceedings and that it would be unfair to apply waiver here.

The most contentious of the remaining motions concerned an attempt by the Government to introduce statements that an officer in their unit had obtained from SO2 McCabe and SO2 Keefe after the alleged assault.  LT Kadlec, the assistant trial counsel, argued that the two statements were identical.  This provides consciousness of guilt evidence, he argued.  He also argued that under the Government’s theory, the apparent collaboration (well, he used the word “collusion”) between SO2 McCabe and SO2 Keefe is circumstantial evidence to prove intent to deceive concerning the false official statement offense with which SO2 McCabe is charged.  During argument on this motion, LT Kadlec made the interesting observation that he understood SO2 McCabe wouldn’t take the stand during the court-martial and that SO2 Keefe would take the 5th if he were called to testify.  LT Kadlec referred to the two SEALs’ preparation of identical statements as “weird behavior” that reflects consciousness of guilt.  LT Kadlec also argued that the statements weren’t hearsay, since they weren’t being offered for the truth of the matter asserted; on the contrary, under the Government’s theory, the statements were untrue.  Arguing in opposition, Mr. Faraj took the position that SO2 Keefe’s statement was hearsay.  He also asserted that the statements were uncharged misconduct that was inadmissible under M.R.E. 404(b).  LT Kadlec countered that 404(b) is a rule of inclusion, not a rule of exclusion.  He then offered a 403 analysis and argued that the evidence isn’t inadmissible under that rule.  After taking the matter under advisement, Judge Modzelewski ruled that she found the statements to be potentially relevant for consciousness of guilt purposes if the Government laid an adequate foundation.  She said she’s not convinced at this point that the evidence is relevant to prove intent to deceive for the false official statement, but that the parties can later revisit the issue of whether she should instruct the members that they can use the statements for that purpose.  Mr. Faraj then made a Crawford objection, maintaining that the statement was obtained as part of an investigation and the defense wouldn’t have an opportunity to cross-examine SO2 Keefe, since he plans to invoke.  The military judge then reiterated that she would allow the Government to try to lay a foundation and that the statements weren’t being admitted for the truth of the matter asserted and therefore weren’t hearsay.

LCDR Grover also noted that the Government had moved in limine to prevent the defense from presenting evidence of the outcome of the Huertas and Keefe cases and an exculpatory polygraph result.  Neal Puckett, SO2 McCabe’s lead civilian counsel, replied that there was no issue with regard to that evidence; the Government motion, he observed, basically asked the defense to obey already existing law.

LCDR Grover then moved to make a change to one of the specs.  The defense agreed and the military judge ruled that the change was minor.

The Government had also apparently moved to limit evidence concerning the alleged victim’s background.  The military judge said she would address the issue at trial, but saw no reason to curtail inquiry into the background at this time.

There was then some discussion of taking judicial notice of the Manchester Manual, with its famous entreaty to al Qaeda operatives to claim torture if captured by the enemy.  The defense asked for more time to consider a proposed instruction to the members concerning the Manual.

And with that, the table is set for voir dire of the members at 0800 tomorrow.

6 Responses to “McCabe — the rest of the Article 39(a) session”

  1. Article16 says:

    Interesting argument on the mirroring statements. In my opinion, there’s no foundation unless there’s evidence on when and how the statements were prepared and when and how they would have met to generate such similar statements plus something additional–something more than speculation that there’s consciousness of guilt. If you’re innocent you can just as well want to get your story straight with another person. An unwise move to collaborate in that way, sure, but in my opinion “consciousness of innocence” is just as likely.
    Also, I think I disagree on the Crawford ruling…the statements are entirely testimonial in content according to a conventional context. What the prosecutor essentially wants to do is admit the testimonial statements for impeachment purposes–which you can do, obviously (under the rule that you can impeach your own witness), but I think impeachment according to a “weird behavior” rubric should require Confrontation of the statement maker–only with confrontation can you clarify, rehabilitate, explain the truth of the out of court statement.
    I get the simple answer reasoning of the ruling, but I think the court should take a closer look at the ramifications of a “weird behavior” loophole to the Sixth Amendment–the military gathers a lot of weird statements, after all. Good job to Mr. Faraj for laying the objection.

  2. John O'Connor says:

    I can think of one other, non-weird reason why two people might give statements that have a very similar rendition of the facts (other than that they collaborated in telling an identical lie).

  3. Article16 says:

    True that.

  4. Anonymous says:


  5. Anonymous says:

    Is there any evidence that they actually colluded in making the statement? If not, then nearly identitical statements (if they really are in fact nearly identical) should be excluded under MRE 104(b) for the government’s proferred theory of admissibility. In other words, the statements either show that (1) they colluded, or (2) they saw the exact same events unfold and simply reported what they saw. Thus, the statements are only relevent if the government admits evidence of collusion (i.e. “the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”).

  6. Article16 says:

    Perhaps the most similar basis of admissibility is the “false exculpatory statement of a co-conspirator,” but I just think the admission of the statements from what little information is here will invite some erroneous instructions and some interesting post-crawford arguments, notwithstanding the characterization as nonhearsay. Like the man says, probably no record of trial will be made.