Here is a link to the audio from today’s United States v. Graner oral argument.  As TWIMJ noted below, this is the oral argument in an Abu Ghraib related case, see prior coverage here and hereHereis a decent news summary of the issues from the San Jose Mercury News.  Mr. Gittins began his argument as follows:

[I represent Pvt. Charles Graner], who I believe is a political prisoner of the failed United States Iraq policy and an unecessary war.  Pvt. Graner remains confined today more than  2 years and 7 months after the last of his co-accused were released from military prison, a fact that I find personally a stain on the military justice system.

There is some internal CAAFlog debate on the effectiveness of such an argument to this bench.  The argument proceeds without comment on the statement and Mr. Gittins quickly gets a question from Judge Baker about the government argument in the case that the enhanced interrogation memos at issue were publicly released.

19 Responses to “Spc. Graner Oral Argument”

  1. honesty says:

    scapegoat maybe. political prisoner he is not.

  2. Anonymous says:

    When I heard the start, I thought, here we go…but after he got going, it was fairly on point and non-crazy.

    Heck I agree both on the failed policy and unnecessary war, but Graner was a sadistic guy who came up with this stuff out of his own fertile mind.

    Trying to portray him as somehow a victim in all of this was not effective at all. Once he moved off that, he was a more effective advocate.

  3. michael k says:

    It’s a pretty long and boring Metro ride to/from CAAF. I’m in favor of most arguments that deviate from the norm and raise eyebrows, short of throwing things at the judges or shouting.

  4. Late Bloomer says:

    His first two sentences contain “I believe” and “I find.” Is first-person narrative/commentary from counsel the accepted norm at the appellate level? I think I recall being advised to avoid it in law school.

    Even if it’s acceptable, is it preferable?

  5. Late Bloomer says:

    Where is Bryan Garner when we need him? We need Garner on Graner.

  6. Anonymous says:

    He used it excessively throughout the argument.

    I think the occasional I believe or I find is preferable to a counsel fighting to not say those words and losing his or her flow.

    Ideally you cut it out completely, but if you slip into it naturally once or twice it seems preferable to flow with it than to stumbling because you are trying on the spot to not say it, which inevitably leads to you saying it anyways, and then wasting time trying to make up for having said it.

  7. anonymous says:

    Do the Judges of CAAF care what mr. Gittins finds to be a personal stain?

  8. Anonymous says:

    I don’t want to make a moutain out of a mole-hill but Gitten’s opening remark has nothing to do with the granted issues, would clearly not benefit his argument in any appellate court that I know of (thereby not helping his client), and must have been said solely to get a soundbite for the media. I’ll bet if uniformed officers said the same remark in front of CAAF, there would have been judges who questioned the counsel about the statement.

  9. retort says:

    you don’t think media attention influences (and sometimes decides) cases? seems to me like this lawyer wants to win.

  10. Anonymous says:

    you really think there is pro-Graner media attention?

    There is a time and place for it, this wasn’t it. Calling Graner a “political prisoner” is just plain inaccurate. “Scapegoat” at least would have had a tinge of accuracy to it.

  11. Charles Gittins says:

    Guys . . . thanks for all of the suggestions. Pvt Graner’s entire family was present and I needed to make sure that their view of the case was heard. I do personally believe Graner is a political prisoner — the Army will not parole him because they fear what he’ll say of released. He was not even the senior guy — Frederick was and frederick has been out of jail for almost 3 years. If you talk to any of the defense counsel who tried the Abu cases, to a man, they will tell you that they are certain that the Government withheld tons of documents that would have been beneficial to the defense but because all of the MI leaders were unavailable because they invoked, the defense had no way to prove it. The story will eventually all come out. It always does. In the meantime, I thought Judge Baker and CJ Effron asked very good questions highlighting the issues. Judge Stuckey’s suggestion that the Court could order a DuBay would be the last thing that the Government would want and the AGC made that clear they didn’t want THAT to happen. I’d love to do a DuBay and have some real discovery, now.

  12. Late Bloomer says:

    Mr. Gittins, thank YOU for showing the cojones to come on here and share your perspective. While your personal insights may not have been invited by the Court, I think they are certainly welcome here (at least by me).

  13. Jason Grover says:

    I have not had the chance to listen to the argument yet. But I have a few uneducated points to make. First, Charlie Gittins is a highly experienced attorney, so I believe his comments were well-thought out. Second, generally I agree that if it doesn’t help persuade it isn’t good advocacy. So I conclude that Charlie thought he had already lost and was just making a statement or he thought he might shock one or more judges into really listening to him. Maybe both. But I do not attribute it to a mistake. Whatever it was, it was intentional by an advocate with more experience at CAAF than most readers and many of the contributors on this blog (myself included). If nothing else, the comments were attention gathering, as these comments highlight.

    A last note, I applaud Charlie for having the courage to comment under his own name.

  14. Charles Gittins says:

    No worries, all. I am sure Dwight would acknowledge that I am no shrinking violet. I call em like I see em and I can take the heat when others do the same. I am a firm believer in the adage “the sun disinfects” which is essentially the opposite of the Government’s well known penchant to classify everything, particularly when it is embarrassing.

    Thanks, Jason. As I told you a couple of days ago, if it is important enough for me to say it, I will make sure it is clear I am saying it, that I stand behind what I say on the record, and I will make sure if I throw down on somebody else, I will give them notice that I have done so. Call me what you want, but I am not Machiavelian. I say what is on my mind and I fear not the consequences. I have been doing MJ for a long time and I think I “get it.”

  15. Charles Gittins says:

    And I may be too folksy for the white shoe law firms, but I think my CAAF results speak for themselves. I recommend the following cases as examples:

    US v. Gleason
    McKinney v. Jarvis
    US v. Long
    US v. Schmidt
    US v. Bright

    I don’t know what will happen in Graner’s case, but I had two judges asking the right questions.

  16. Jason Grover says:

    And your co-counsel in Long was extremely helpful and a snappy dresser.

  17. Anonymous says:

    I applaud his courage and his experience. Certainly more than mine, at least at CAAF.

    Still doesn’t make him immune to criticism though. I don’t get the sense that the judges needed “shocking.”

    They appeared prepared and somewhat receptive to the main argument vis-a-vis discovery.

    I certainly do understand the fact that the family was there and the need to take that into consideration, but it was not an approach that even fit in with the rest of the argument.

    Overall, I thought Mr. Gittins was better prepared and argued better than government counsel, but the opening was a distraction. Just my own inexperienced observation.

  18. Jason Grover says:

    Anon 2046,
    Fair enough, I did not mean to imply one could not or should not be critical of Charlie. Advocacy is an art and there are many different approaches. I guess my point was that his certainly made sense to him and he was an experienced counsel. I am not suggesting it was the “right” way as much as it was one way that made sense to this advocate in light of what he knew about his case and what he was trying to get across. I doubt if I would have done it that way, but I probably could not have pulled it off even if I tried. But none of us here, Charlie included, are above criticism. No Man, though, usually takes it particularly hard, so be gentle with him.

  19. Anonymous says:

    Actually, sounds like the AGC made it clear that there was no NEED for a Dubay hearing because appellant did not meet his burden of showing the documents were not provided to appellant. The documents were provided to the appellant months before trial (some as part of the Article 32 hearing as pointed out by AGC) and they were declassified and made publically available months before trial as well (as pointed out by Judge Baker).