There will probably never be a record of trial in the court-martial case of United States v. SO2 McCabe.  But if there is, oddly enough the names Rep. Dan Burton, Bill O’Reilly and Geraldo Rivera will be in it.

An afternoon Article 39(a) session dealt with several motions from both parties, but the biggie was a UCI claim by the defense.  In its motion to dismiss, the defense cited a portion of a recent exchange between Geraldo Rivera and Bill O’Reilly on the O’Reilly Factor. 

The first issue for the military judge was whether the defense had presented sufficient evidence to shift the burden to the prosecution to disprove unlawful command influence.  The defense argued that the convening authority’s prerogative to resolve the case by alternative means had been usurped by a superior commander.  The defense’s primary evidence was a transcript of this Rivera-O’Reilly exchange :

O’Reilly:  This Cleveland has the power to drop the cases.

Rivera:  It’s a close call.  I’m not sure that he does.

O’Reilly:  No, it’s not close.  It’s not close.  He could do it.

Rivera:  I’ve spoken to people close to him just today.

O’Reilly:  But let him come on the air.

Rivera:  And they think that he is really being scapegoated in this case.

O’Reilly:  No, I don’t believe it.

Rivera:  And he would like very much to do the right thing.

O’Reilly:  Then do it.

Rivera:  And I think that —

O’Reilly:  Then do it.

Rivera:  –well, maybe it comes from the Chairman of the Joint Chiefs.  It’s very difficult for him to do it.

To further support the UCI allegation, the defense proposed calling Representative Dan Burton as a witness.  One of SO2 McCabe’s civilian defense counsel, Haytham Faraj, argued that a factor in the UCI analysis is whether a reasonable member of the public who is aware of all the facts would question the proceedings’ fairness.  The defense offered Rep. Burton as a reasonable member of the public and noted that he had collected more than 100,000 signatures on a petition asking for the charges against the SEALs to be dismissed.  The military judge, CAPT Moira Modzelewski, accepted the proffer that Rep. Burton had collected more than 100,00 signatures, but ruled that Rep. Burton’s views weren’t relevant to the UCI motion and declined to have him called as a witness.  The irony of attempting to use Rep. Burton to demonstrate someone else had attempted to influence the cases’ resolution was left unaddressed.

The defense also argued that the combination of SO2 McCabe passing a polygraph and the findings of not guilty in the courts-martial of SO1 Huertas and SO2 Keefe would lead a reasonable CA to withdraw the charges against SO2 McCabe, suggesting the inference that since Major General Cleveland had not done so, he must have been subjected to improper pressure not to.

The government presented no evidence on the UCI motion.  Lead prosecutor LCDR Jason Grover argued that the defense’s motion was the very definition of mere allegation or speculation, which isn’t sufficient to shift the burden to the prosecution to disprove UCI.  LCDR Grover also observed that the court-martial was convened only after the accused had demanded trial by court-martial.  [Disclosure:  LCDR Grover is one of our colleagues here at CAAFlog, though he has had nothing to do with our coverage of this case.]

Mr. Faraj then argued in rebuttal.  I may not have this verbatim, but he argued something to the effect that the military judge should conclude that the evidence was sufficient to shift the burden “unless this Court wants to say Geraldo Rivera is a liar.”  Mr. Faraj then took issue with the trial counsel’s use of SO2 McCabe’s exercise of his right to refuse NJP to counter the UCI claim.  But Judge Modzelewski SO2 McCabe refused NJP, Major General Cleveland could have used other administrative responses, such as a counseling entry, rather than referring the case to a special court-martial.

The military judge then ruled.  Emphasizing that the case law establishes a very low burden for the defense to shift the UCI burden to the government, the military judge concluded that the defense hadn’t even satisfied that initial burden.  She found Mr. Rivera’s allusion to the Chairman of the Joint Chiefs of Staff to be mere speculation, and emphasized that there was “absolutely no evidence whatsoevere of pressure” from ADM Mullen.

I’ll post a couple more entries about today’s proceedings.  The bottom line is that today was a good day for the prosecution.  But to quote Scarlett O’Hara, “tomorrow is another day.”

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