United States Army Trial Judiciary Second Judicial Circuit, Fort Bragg, North Carolina. ) ) Pretrial Order ) ) )

Transcription

1 1. SCHEDULE OF PROCEEDINGS. United States Army Trial Judiciary Second Judicial Circuit, Fort Bragg, North Carolina U N I T E D S T A T E S v. Pretrial Order SGT Robert B. Bergdahl HHC, STB, US Army FORSCOM Fort Bragg, NC December 2015 Trial in the above case will begin at 0900 on 8 August Voir dire and empanelment of members will take place from 8-10 August. All motions and trial sessions, as outlined below, will take place between 0900 and approximately 1800 each day. All trial sessions will take place at the courtroom at building , Normandy Road, Fort Bragg, NC. Uniform for trial for all participants is ASU/Class A (or, at the direction of the military judge, Class B with awards and decorations; civilian counsel will wear appropriate business attire. Counsel shall comply with this order or seek relief from the military judge as soon as possible; but, in no case should the request for relief be made after the due date has passed. Items are due by close of business (1700 on the dates indicated. Items preceded by an asterisk shall also be provided to the military judge. Pursuant to RCM 801, the following orders are issued to ensure a fair, orderly, and expeditious court-martial: 2. NOTICES a. Statements and Evidence from the Accused The Government must strictly comply with the Section III disclosure provisions of MRE 304(d, 311(d and 321(c. If not already provided, trial counsel will provide Defense Counsel with notice of intent to admit Section III evidence (statements of the accused, evidence seized from the person or property of the accused, or prior identification of the accused immediately upon receipt of this order. The court notes that the government may have already complied and will continue to provide as required. b. Experts 1. The Government will provide the Defense a written list of its anticipated expert witnesses and expert areas of testimony no later than 1 May Not later than 1 June 2016, both the trial and Defense Counsel will provide notice to opposing counsel and the Court of their intent to admit expert testimony during 1

2 their respective cases-in-chief (both merits and sentencing. Such notice will provide the name and address of each expert, as well as the subject(s in which counsel seeks to have the witness qualified as an expert under MRE 702. Further, the party offering such expert will provide a written report prepared and signed by the witness, which will contain a complete statement of all opinions to be expressed and the basis and reasons therefor, the data or information considered by the witness in forming the opinions, any exhibits to be used as a summary of or support for the opinions, and the qualifications of the witness. If applicable, not later than 10 June 2016, the party against which such expert testimony will be offered will give notice of whether a hearing under Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct (1993, is requested. *c. Defenses Defense will notify the Government, in writing, no later than 17 June 2016 of notices required by Rule for Court Martial 701(b(2, including but not limited to the defense of alibi, lack of mental responsibility, or the intent to introduce expert testimony as to the accused s mental condition. *d. Forum Election The Defense will provide written notice of the accused s forum election to the Government and the Court no later than 15 July *e. Classified Information Not later than 20 January 2016, defense shall provide to the government IAW MRE 505 (i, notice of intent to view classified information prior to or during trial. Not later than 30 June 2016, defense shall provide to the government IAW MRE 505 (i, notice of intent to use classified information prior to or during trial and make requests, if any, to declassify any evidence currently classified. Not later than 29 April 2016, government will file any motion for in camera proceedings IAW MRE 505(h. f. Defense Discovery Request Not later than 20 January 2016, defense will provide to the government any written request for discovery and or production of evidence in accordance with RCM 701 and MOTIONS a. All motions will be in writing and comply with the requirements of the Uniform Rules of Court, as modified by this order. In order to facilitate an organized method of identifying and filing submissions with the Court, the parties will follow the protocol for marking for Motions, Replies, Responses and any Appellate Filings: 2

3 1. Format. All filings will follow the format prescribed in The Rules of Court and will be marked using Arabic numerals in the chronological order in which they are filed, beginning with the earliest submission as #1. 2. Marking. Prior to filing, in the bottom right corner -All Government filings will be marked G APP-# -All Defense filings will be marked D APP-# -Any enclosure to any filing will be marked Encl to D or G APP-# and will continue pagination from last page of base document 3. Prior Filings. Any motion filed prior to arraignment on 22 December 2015 will be re-marked in accordance with this pretrial order. 4. Filing. All filings following the date of this order will be premarked in accordance with the above protocol before being formatted as PDF files. Electronic file names attached to s will begin with G or D APP # - or ENCL # to G or D APP #. The subject line of any filing will include US v Bergdahl G or D APP # -Subject 5. Index of Filings. Under the direction of the clerk of court, upon filing of any matter, each party will provide an updated electronic index of all submissions it makes to the court in the format consistent with the following examples: Defense Exhibit # CAPTION OF FILING #pages (w. encls DATE OF FILING RESPONDING TO WHAT FILING(S/ Orders D APP 1 Notice of Forum and Plea 1 25 Oct 12 Ordered by Court D APP 2 Motion to Compel Expert Assistance Oct 12 N/A Gov t Exhibit # G APP 1 G APP 2 CAPTION OF FILING Response to Defense Motion to Compel Expert Assistance Motion in Limine to Exclude Evidence #pages (w. encls DATE OF FILING RESPONDING TO WHAT FILING(S/ Orders 13 1 Nov 12 D APP Oct 12 N/A 6. Improper Filings. Any filings made to the court which do not comply with this protocol will not be accepted and must be submitted in its proper format before it will be entertained by the court. b. Required Motions. Counsel must consider the issues required to be raised prior to entry of plea (RCM 905(b(1-(6 and 906, the issues that must be raised prior to final adjournment of the court-martial (RCM 906 and 907(b(2, and the grounds for motions that are not waived. (RCM 907(b(1. The following issues, if relevant, will be addressed in motions in the general order listed: 3

4 *1. Motions to Compel Discovery The Defense will file any and all motions to compel discovery with supporting briefs, no later than 19 February Government response to Defense discovery motions is due no later than 3 duty days thereafter. The Article 39(a hearing for these motions will be held from 5 6 April *2. Motions Related to Expert Assistance and Witnesses. a. Defense requests for expert assistance should be submitted to the convening authority no later than 16 May The convening authority should act on such request within 7 calendar days. All witness requests will comply with RCM 703(c(2. Defense will file any motions for production of expert assistance or witnesses (RCM 701, 703, 905(b(4, and 906(b(7 5 duty days thereafter. Only requests submitted to, and denied by, the convening authority are ripe for consideration by the military judge. b. The Government will provide its written response to the Defense motion to compel expert witnesses and expert assistance no later than 5 duty days after submission by the defense. An Article 39(a session to address these motions will be held from 2 3 June *3. Motions to Dismiss or Grant Appropriate Relief a. Any motions for severance (RCM 905(b(5; RCM 906((b(9-( (b(6. b. Any objections based on denial of individual counsel (RCM c. A request for relief from pretrial confinement or relief for alleged Article 13 violations then discoverable (RCM 906(b(8. d. A request for a bill of particulars (RCM 906(b(6. e. Any request for change of venue (RCM 906(b(11. f. Any motions on multiplicity (RCM 906(b(12. Any request for continuance (RCM 906(b(1. g. Any motions to suppress evidence (RCM 905(b(3. h. Objections based on defects in the preferral, forwarding, investigation or referral of charges (RCM 905(b(1. 4

5 i. Objections based on defects in the charges and specifications (RCM 905(b(2 and RCM 907(b(1. (RCM 906(b(3. Article 10, UCMJ. j. Objections based on corrections or defects in the pretrial advice k. Motions to dismiss on speedy trial grounds (RCM 907(b(2(A or l. Any other motions to dismiss under provisions of RCM 907 and motions for appropriate relief under provisions of RCM 906 not otherwise specified in this subparagraph. The Defense will file any motions covered under subparagraph 3.b.3.a-l, with supporting briefs, no later than 16 May Government response briefs are due no later than 5 duty days thereafter. An Article 39(a session to address these motions will be held from 2 3 June *4. Evidentiary Motions in Limine Counsel will file motions pertaining to any evidentiary issues capable of resolution before trial by motion in limine (for example, issues under Mil. R. Evid. 404, 801, 802, 803, 804 and 807; RCM 906 (b(13. Specifically, if the defense requested notice and the Government intends to offer evidence against the accused under Mil R. Evid. 404(b, the Government will disclose such evidence to the defense in writing no later than 16 May If opposed to the admissibility of such evidence, Defense will then be obligated to file a motion in limine, and the Government will file a motion in response, bearing the burden of proof as to the admissibility of such evidence, no later than 15 June An evidentiary hearing on those motions will occur from, 7 8 July FINAL WITNESS REQUESTS AND NOTICES a. Not later than 16 May 2016, defense will request production of any Afgan citizen witnesses (military, government official or civilian IAW RCM 703(c(2(A or RCM 1001(e. Not later than 15 June 2016, defense will request production of other defense witnesses IAW RCM 703(c(2(A or RCM 1001(e. In this regard, the parties are reminded that a synopsis as this term is used in the RCM, is not a statement of the subject matter of the witness s testimony. A synopsis is a summary, in narrative form, of the requested witness s actual testimony. Government response to Defense witness requests is due no later than 1 June 2016 for Afghan witnesses and 21 June 2016 for all other witnesses. The Government will provide the Defense a preliminary list of its trial witnesses no later than 16 May Defense motion to compel production of witnesses (other than experts is due 6 June 2016 for Afghan witnesses and 5 July 2016 for all other witnesses. Government response brief is due by 3 duty days thereafter. The Article 39a hearing for these motions will be conducted from 11 July

6 *b. Trial Counsel and Defense Counsel will submit to each other, to the Court and to the Court Reporter, a complete final list of witnesses IAW RCM 701 (full names with correct spelling each party intends to call in all phases of the trial by 18 July This requirement does not modify the Trial Counsel s responsibility to provide Defense with notice of witnesses IAW para and of the Judiciary Rules of Court. This requirement is not an opportunity for counsel to request additional witnesses, but is intended to finally advise the court and opposing counsel of what previously requested and identified witnesses will actually be called at trial. *5. SECURITY PLAN The Government will file its proposed Security Plan, Public Affairs Plan, and Logistical Support Plan no later than 6 January An Article 39(a hearing to address these matters will be held on 11 July *6. CONVENING ORDERS & QUESTIONNAIRES a. Counsel will coordinate to provide the Court a single questionnaire for the court members in accordance with Rule for Court-Martial 912(a, to which each side agrees. Counsel for each side may also provide the Court a list of questions it proposes for the court member questionnaire to which the opposing side objects, if there are any such questions. Counsel will provide the Court with the court member questionnaire and any additional proposed questions no later than 1 April As presiding judge, I will determine which questions will be included on the court member questionnaire submitted to the members. These will be provided to the parties and the members on or about 15 April 2016 with a suspense to the members for completion of 1 May b. The Government will have all amending convening order(s for this court-martial signed not later 1 August 2016 so the court member questionnaire may be distributed, completed, returned, and reviewed by counsel by any new members in sufficient time prior to the start of voir dire. The Government should also identify a sufficient number of alternate court members selected prior to 1 August 2016 so those alternate court members will have the opportunity to complete the court member questionnaire in a timely manner. *7. VOIR DIRE Counsel will provide the Court a copy of their proposed general voir dire questions no later than 1 August The questions should be numbered consecutively. Sub questions should be lettered. Counsel may provide opposing counsel with their proposed general voir dire questions, but are not required to do so. Neither counsel may ask general voir dire questions unless previously approved by the Court. 6

7 8. TRIAL EXHIBITS, DOCUMENTS AND REQUESTED INSTRUCTIONS *a. Trial Counsel will provide to the Court and Defense Counsel, not later than 1700, 4 August 2016, a seating chart, the flyer, and electronic copies of the Findings and Sentence Worksheets, b. No later than 4 August 2016, the parties will provide to the court and opposing counsel a pre-marked and page numbered (Bates stamped copy of all exhibits the parties anticipate they may use or offer during trial. As an exception, posters, demonstrative exhibits and physical evidence must be identified on a written list and made available for inspection rather than being duplicated or photographed for the court or opposing counsel. *c. No later than 3 duty days prior to opening statements, each party will submit proposed instructions to be given to the members during trial, including instructions during trial, prior to findings and prior to sentencing. A list of authority and an explanation as to why the standard instructions do not address the issue must accompany any requested nonstandard instructions. See United States v. Damatta-Olivera, 37 M.J. 474, 478 (CMA If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced which is subject to discovery or inspection under RCM 701, or any other matter with regard to which notice or disclosure was required to be given under RCM 701 or this order, that party shall immediately notify the other party. 10. Questions regarding this order should be directed to the undersigned at or or at: jeffery.r.nance.mil@mail.mil. Always cc Ms. Stacy Carver, the clerk of court, on all correspondence at: stacy.c.carver.civ@mail.mil. Also, always cc Ms. Patty Walls, my docketing clerk, on all correspondence concerning any case at: patricia.a.walls8.civ@mail.mil. Ordered this 30 th day of December 2015: JEFFERY R. NANCE COL, JA Military Judge 7