In a very interesting ruling yesterday,
LtCol Jeffrey
Meeks found that CBS was entitled to a qualified
newsgatherer privilege and withheld
unaired portions of a 60 Minutes interview with accused
SSgt Frank
Wuterich from the government. The North County Times, report here, quoted
Meeks as ruling,
There is a qualified newsgatherers privilege and it is applicable here based on concerns about a chilling effect on the press. . . The press has an interest in being able to prepare and preserve stories without being an investigative arm of the government.
The most interesting part of the ruling, and the part that will likely end the Art. 62 saga in this case, was
Meeks' "ruling" regarding the relevance of the
unaired portions, as described by the
NCT,
In his ruling Thursday after seeing it, the judge said the material in fact did not contain anything that wasn't available to prosecutors already through voluminous documents from multiple investigations of the Haditha killings."All the statements are consistent with prior statements he has made," Meeks said of Wuterich, who . . . "It might be nice to have, but it's not critical," Meeks told Gannon and two other prosecutors assigned to the case.
If the government appeals this ruling it is a travesty and abuse of the language of Art. 62(a)(1)(B), which limits an Art. 62 appeal of a ruling excluding evidence to only "evidence that is substantial proof of a fact material in the proceeding." Congress would need to amend that to read "evidence that [would be nice to have]." Code 46, if you are listening, just let the trial begin.
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13 comments:
Mike,
So the government should just let this novel "newgatherer privilege" float around out there? I understand that LtCol Meeks retires today. That's quite a going away present. Additionally, why should the government accept the determination of the military jude--not the judge who will ultimately try this case--that this unseen evidence is not material?
Anon 1027,
What, you're concerned about the precedential value this ruling sets? What does "float around out there" mean? This was not an appellate court, it cannot and will not effect a single future prosecution.
My Friend No Man, I think you are wrong here.
Article 62 states that an appeal may be taken if the MJ makes a ruling that excludes substantial proof of a material fact in the proceeding. It also states that it is the trial counsel that must certify to the appellate court that the MJ's ruling does so exclude such evidence. This is almost identical, if not identical, language from the federal statute 18 usc 3731.
The 8th, 3rd, and 7th Circuits all reject the notion that the Court reviews whether in fact the evidence is substantial or material. See United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000); United States v. Kepner, 843 F.2d 755, 761 (3rd Cir. 1988); In re Grand Jury Investigation, 599 F.2d 1224, 1226 (3rd Cir. 1979); United States v. Comiskey, 460 F.2d 1293, 1297-98 (7th Cir. 1972). The 9th circus, errrrrrrr, circuit is the only one I am aware of that does.
As long as the TC certifies that it is substantial proof of a material fact, that is enough for a 62 appeal. It also makes sense in that this is NOT the MJ's or the trial judge's case, it is the government's case and the trial judge or MJ has no business telling the government which evidence is substantal proof or not. In the civilan system, it is a sep. of powers argument. In the military, that's harder since it is the same power.
But nonetheless, despite the MJ's "opinion" that this evidence is not substantial proof, the TC can still certify as so and take a 62 appeal. It's the TC's case, not the MJ's.
And I'd be interested in reading about this news-gathering privilege. To my knowledge, that has been argued over and over again by the press, and the courts have rejected it over and over again. And quite frankly, there is nothing in the First Amendment that gives the press some sort of privilege. It doesn't chill the press from printing and reporting, not having a privilege. It simply "chills" the presses ablity to maybe get the information. But as far as I know, there is nothing inthe constituion that says the press has a right to this information. It just gives them the right to print it if they get it. In other words, if the President decided no more whitehouse press briefings and I and my administration will no longer talk to the press, there is nothing the press can do, except print nasty things about it over and over again. But the press does not have a First Amendment power to compel anyone in the government to talk to them.
The press has no right to investigate criminal conduct, but then say we are immune or privileged from having to turn over that investigation to the government for prosecution. And there is no privilege for the criminal to talk to the press or a witness to the crime to talk to the press. It's like the press thinks they enjoy the same privilege as to attorneys.
Make that affect.
The Cat:
How can the TC certify that it is substantial proof of a material fact? The only thing he knows about the evidence is that it is cumulative evidence that "would be nice to have." What is the basis for such a certification? He doesn;t even know what is on the tapes.
While the inability to make that certification is because the MJ has suppressed the evidence, it doesn't change what the statute says. While I know the Cat to be relatively even handed, I wonder whether he or Anon #1 would have heart burn if the statute worked to the detriment of the accused and left the DC unable to certify that the evidence was substantial for purposes of appellate review?
No Man makes the point I have made regarding this case. How can anyone certify that they need the evidence when they don't know what it shows?
It might be that the appellate court doesn't look behind the certification, but it just seems screwy that you could certify about needing that which you don't know.
It's also not entirely correct that judges have no business deciding how important evidence is to the government's case. They do it all the time in making 403 balancing determinations.
To be clear, while I agree with THAT point by No Man, I don;t adopt whatever insane point he is trying to make about DC certification regarding evidence.
My friends No Man and J O'C (whom I have never met but heard good things about):
I would be very surprised to learn that the TC did not have any idea what the evidence was the MJ is not allowing them to have. Typicaly, you would have a good idea. This is true on the defense side. As you may or may not know, discovery in the federal system is not as open to the defense as in the military system (but that can depend on the USAO; in my office we have open discovery and give defennse everything for most part). Still, when the defense can articulate that they expect to find this kind of evidence in x file with the government and that evidence is material to the preparation of the defense because of y and z, then they win a motion to compel discovery from a judge.
But when the defense starts to speculate that something good for the defense may be in file x, but not articulate what and how it could be good, then it is denied because the defense is not permitted to go on a fishing expedition.
I would think the same is here. The TC probably has a good idea, beyond mere speculation, of what the evidence is he wants. Especially if it is video statements of the defendant; I don't care if I have the same statements elsewhere, I want the video to play to the jury, that is far more "substantial proof" than just a statement or the testimony of an agent who heard or took the statement.
J O'C: Doing a 403 balance is not the same thing. What the MJ seems to be saying is this may be relevant admissible evidence, but I am not going to let you have it because of a made-up privilege and I don't think you need it, you may have it somewhere else.
403 says it is not admissible because its unfair prejudice outweighs any probative value. That evidence should never come in because the accused could be deprived a fair trial--by definition since it is unfair. These are two different animals.
Back to No Man:
The difference between the government getting to certify and the defendant lies in the fact that, except in the ex-writ circumstance, there is no 62 for a defendant. If the MJ exlcudes defense evidence, then that is taken up during the normal course of appellate review. Because at that time, assuming conviction--WHICH IS VERY IMPORTANT HERE--the Court evaluates the omitted evidence to see if wrongfully omitted and if so, evaluates it in light of all of the evidence to see if there was any prejudice. If the evidence was omitted wrongfully, but the defendant was acquitted, I am sure the defendant doesn't care anymore at that point.
On the government side, however, if the evidence is omitted and there is an acquittal, the government cannot appeal. So there is this interlocutory mechanism to give the government its appeal of the exclusion order. Otherwise, the government could never appeal an exclusion order.
But you have to rely on the certification because you don't have a trial at that point to truly see if the evidence excluded was substantial proof. The government knows its case the best at that point and thus the certification goes to the government counsel.
"J O'C (whom I have never met but heard good things about)"
I assure you, those things you have heard are not true.
My only point is that judges do sometimes decide how important evidence is even once it meets the relevance standard, when they do a 403 balancing. I agree it's different from deciding whether relevant evidence must be produced.
Also, The Cat, while I don't claim detailed expertise on the issue, this does seem like, in your words, "a made up privilege."
"It might be nice to have, but it's not critical,"
Never heard that standard before. I am sure TC knows pretty well what is on the tape by piecing together the evidence that is available.
How can there be a privilege? There must have been a director, make up, sound tech, lighting, gaffer, computer tech, background info reporter, various assistants, security and the food guy all inthe production room. Not to mention the various editors and preoofers that reviewed the tapes afterwards. Are they all covered by the privilege?
This is not the case of Bob Woodward meeting in a dark parking garage developing a source.
The Cat:
All of your points are valid, but frankly . . . that's not what the statute says. It says evidence that is substantial proof of a fact. And while I would like to engage in a discussion about what the government knows about the tapes, I can't make the assumptions you are because the TC has not to my knowledge represented he knows anything about what is on the unaired portions. If he does, I am certainly open to re-analysis of my comments--it soulf help to put such things on the record if say the TC was considering an Art. 62 appeal, so one would think if he knew he would have said it. I will note, in all frankness, that I have only seen media reports of the case and not seen briefs or heard arguments. I am always open to seeing briefs or the decision by Judge Meeks. Someone in the know please feel free to email me.
Look Meeks pal,
Are you serious? I thought he was removed from the bench months ago.
Welcome to the world of defense.
How many times does the prosecution object to providing "discovery?"
How many times does the MJ look at the stuff in-camera?
How many times does the MJ, not the defense counsel say, "there's nothing here?"
How many times do the appellate courts say, "good to go!"
Prosecution, now do you see what it's like being a defense counsel on this type of issue. Doesn't make sense does it.
Goose and gander time!
Phil--point well noted. However, in this case NMCCA and CAAF both had to tell the MJ how to do his job and actually required him to review the evidence before he made a ruling.
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