Tuesday, April 21, 2009

Wuterich NMCCA Appeal

Here is the latest Government brief in the US v. Wuterich Saga. This is the G's Art. 62 appeal of the military judge's second ruling, covered here and available . . ., where the judge found a qualified news gatherer privilege and found the evidence otherwise nice to have, but cumulative.

Credit has to go to the government for the brief. After spending a lot of time saying there should be no qualified news gatherer privilege in the miltiary, the brief in 5 and a half concise, Courier New 12 font pages, does a good job arguing that the military judge was wrong on the cumulativeness ruling. The brief rebuts Judge Meeks' conclusion that the outtakes were "not critical," "consistent with other evidence," and just "nice to have," by effectively arguing that they are important to the government and the best evidence of the accused's guilt. I particularly liked the comparison between the accused's 2-page sworn statement and 80 minutes of admission on pages 44-45.

More to follow. Hard to say if this will be another win for the G at NMCCA and loss at CAAF.


Anonymous said...

Government went 2 for 2. CAAF ordered the military judge to review the raw footage in camera. Just like NMCCA. That's what the first appeal was about. Soooo, the MJ directed CBS to turn over the tapes and it did. How is this a Gov't "loss"? Only on CAAFlog...

Socrates said...

Pro-Government Anon at 18:00, I have only one thing to say to you:

(See No. 09-0133/MC. U.S. v. Raheem G. GREEN. CCA 200800005.)

Mike "No Man" Navarre said...

Dear Only on CAAFlog . . .:

First, I will have to admit that I thought the government had asked for a finding of no newsgatherer privilege in their first round of appeals. But, upon re-reading the CAAF and NMCCA cases I found this in the CAAF opinion, "On appeal, the parties have referred to the question of whether a newsgathering privilege should be recognized in the military justice system, but they have not asked this Court to resolve whether the subpoena in this case should have been quashed on a qualified newsgathering privilege." Thus, I amend my prior statement and no loss at CAAF. I stand corrected.

In the interest of waxing philosophically about this case it occurs to me that whatever the outcome of this litigation the Government's wins certainly came at a rather high cost. These charges are nearly 4 years old and to date there has been no substantive proceeding in the case. While speedy trial is certainy a flexible concept, there are benefits to the government in prosecuting offenses at or near the time they are committed--and certainly before you remove your troops from the nation where the offenses occurred. Though maybe the government feels that in light of past trials in this matter they can't win without these tapes, while the government is winning these battles, I wonder who feels like they are winning the war?

Anonymous said...

And don't forget that Wuterich hasn't even raised the same UCI motion being litigated in Chessani . . .yet!