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.