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Hamdan's Surprise Defense Witness:

I somehow missed this news last week: Col. Morris Davis, the former Gitmo prosecutor who resigned in protest of political interference with the military commissions (see these posts), expects to be called as a witness for the defense in the trial of Salim Ahmed Hamdan. If so, Davis is expected to testify that political interference has compromised the integrity and impartiality of the proceedings. The Defense Department may bar Davis from testifying, but as Kevin Jon Heller notes, such a move would be a "PR disaster."

Humble Law Student (mail):
Is it really surprising? His recent public comments make his action appear quite natural. He probably can't wait to defend the detainees pro bono. Too bad he is likely barred for now by the model rules.
2.27.2008 10:22am
NatSecLawGuy:
"Too bad he is likely barred for now by the model rules."

Yeah, this was my thought too. I don't see how he could testify to political interference when that occurred while he was representing the government. Seems like that is a fairly clear violation of confidentiality. I am in no means a PR expert, but my cursory glance at MR 1.6 doesn't seem to allow the revelation under an exception to the general prohibition. However, I am unsure how ethics rules work in the context of a military lawyer.
2.27.2008 10:42am
Anderson (mail):
However, I am unsure how ethics rules work in the context of a military lawyer.

Me too. I also wonder whether the exact nature of the political interference is an issue. Take for instance his claim that Haynes told him "we can't have any acquittals."

--Is that protected by confidentiality?

--If so, is Davis already in trouble for disclosing same?

--If he's not in trouble, then why is making the same statement at trial any different?

--Does it make any difference that Haynes denies making that statement to Davis?
2.27.2008 10:46am
Westie:
I understand the point about MR 1.6, but can testimony about political interference really be called "information relating to the representation of a client"? The confidentiality rules don't prevent lawyers from providing testimony about *every* action of their client, only those acts related to the representation. Is political interference with the commissions related to Davis' representation of the US in each prosecution? It seems the interference would be *outside* the representation (which is the whole point).
2.27.2008 10:48am
Anderson (mail):
It seems the interference would be *outside* the representation (which is the whole point).

Particularly if Haynes was not counsel for the prosecution, which he could not have been, given that he had authority over both prosecution and defense.
2.27.2008 11:26am
Bart (mail):
Unless Davis can demonstrate that the prosecution is not following the law or the procedural rules of the Court, I do not see the relevance of his proposed testimony.

The political head of any prosecutor's office always demands convictions in high profile cases. Anyone who has served in a DA's office would be unsurprised that Davis' boss was no different.

What is remarkable was that Davis as a prosecuting attorney wanted acquittals. Given that he is not alleging that any of his cases involved innocent defendants, how Davis want acquittals?
2.27.2008 11:29am
Anderson (mail):
The political head of any prosecutor's office

Bart, that is not what Haynes was. He was over both the prosecution *and* the defense -- exercising the "convening authority."

You are also making things up re: "Davis wanted acquittals." That is not true. He said nothing of the kind.

"I said to him (Haynes) that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis was quoted as saying.

"At which point, his eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? ... We've got to have convictions.'"
2.27.2008 11:39am
Stuart M. (mail):
How does this testimony help the defense? "Your Honor, I know you'd decide to acquit were it not for the fact that the local political machine pulls your strings and ordered you to convict." Not very persuasive.
2.27.2008 11:41am
Anderson (mail):
How does this testimony help the defense?

Not very much, given that it'll be heard by military judges and not a civilian jury.

One can however ask oneself: if I were being tried for an alleged crime, and the authority overseeing my trial had said that my acquittal was not an option, would I feel that I was probably getting a fair trial?
2.27.2008 11:46am
Bart (mail):
Anderson:

The political head of any prosecutor's office

Bart, that is not what Haynes was. He was over both the prosecution *and* the defense -- exercising the "convening authority."


Unless the defense attorneys seeking to offer Davis' testimony are claiming that Haynes improperly influenced them and are seeking their own dismissal, than this fact is irrelevant.

You are also making things up re: "Davis wanted acquittals." That is not true. He said nothing of the kind.

"I said to him (Haynes) that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis was quoted as saying.

"At which point, his eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? ... We've got to have convictions.'


This and his resignation because of Haynes' response demanding convictions pretty strongly implies that Davis thought that acquittals would be a good idea.
2.27.2008 12:01pm
Anderson (mail):
This and his resignation because of Haynes' response demanding convictions pretty strongly implies that Davis thought that acquittals would be a good idea.

That is not the only reason he resigned -- he opposed the use of torture-obtained evidence -- and it implies no such thing, except in your own mind. Some people have principles.

Unless the defense attorneys seeking to offer Davis' testimony are claiming that Haynes improperly influenced them and are seeking their own dismissal, than this fact is irrelevant.

Uh, no. You can pretend it's irrelevant because you say so. But whether he tried to influence the defense attorneys has nothing to do with the topic. The point is that Haynes not only abandoned any pretense of neutrality, but expressed his intent that the results would be preordained.

You present yourself at Balkin's blog as a defense attorney; for you to claim that you would not be distured on your client's behalf if a judge made such remarks about your client's impending trial would be atrocious.
2.27.2008 12:17pm
Bart (mail):
Anderson:

BD: This and his resignation because of Haynes' response demanding convictions pretty strongly implies that Davis thought that acquittals would be a good idea.

That is not the only reason he resigned -- he opposed the use of torture-obtained evidence -- and it implies no such thing, except in your own mind. Some people have principles.


Davis would not have brought up the incident unless it was a primary reason for his resignation.

BD: Unless the defense attorneys seeking to offer Davis' testimony are claiming that Haynes improperly influenced them and are seeking their own dismissal, than this fact is irrelevant.

Uh, no. You can pretend it's irrelevant because you say so. But whether he tried to influence the defense attorneys has nothing to do with the topic. The point is that Haynes not only abandoned any pretense of neutrality, but expressed his intent that the results would be preordained.


To start, there is nothing in Haynes alleged statement which even implies that he had fixed the outcome of the trials at hand. He simply wants his office to obtain convictions. I cannot imagine any commander of a JAGC office tasked with prosecuting the primary surviving conspirators in the 9/11 attack not fervently demanding convictions from his prosecutors. Beyond achieving justice for thousands of dead and injured and their families, you can kiss your career goodbye if you blow the prosecution of these terrorists.

You need to understand that the JAG Corps does not have a civilian government structure. The DA and PD are not separate offices with different bosses. A JAGC office is under one officer and the JAG attorneys change roles from prosecution and defense. It is not unusual for the command structure to want a conviction of some defendant. The way the JAGC ethically deals with this reality is to erect sort of a Chinese Wall between the rest of the office and the defense.

Consequently, the fact that Haynes wanted convictions is only an issue if Haynes was attempting to improperly influence the defense counsel not to do their jobs. There is no evidence of that. Indeed, I believe all of these defendants now have civilian counsel.

You present yourself at Balkin's blog as a defense attorney; for you to claim that you would not be distured on your client's behalf if a judge made such remarks about your client's impending trial would be atrocious.

I am unaware of any motion to recuse the present military judge for being improperly influenced by Haynes.

For what it is worth, as a defense attorney, I would also offer the testimony of Davis primarily to establish a record for my appeal seeking to attack the MCA military commission system as a substitute for a civilian criminal trial.
2.27.2008 12:52pm
Henry679 (mail):
I think I am going to watch my copy of Paths of Glory tonight, to get warmed up for these proceedings.
2.27.2008 1:42pm
wfjag:

However, I am unsure how ethics rules work in the context of a military lawyer.


Each of the military services have, by regulation, adopted the Model Code as their ethics rules, with the proviso that the attorneys are also bound by the ethics rules of their respective states of admission, and with the proviso that in event of a conflict between the Model Code and the state's rules, the Model Code prevails in ethics proceedings within the military system, but that that provision is not a defense to a disciplinary proceeding by the person's own bar association.

Ethical violations aren't Col Davis' only concern. He likely will have the opportunity to find out how broad
18 USC §206's exception to §205 is. And, he's also likely to find out about the prohibitions in 18 USC §207 "Restrictions on former officers, employees, and elected officials of the executive and legislative branches".


For what it is worth, as a defense attorney, I would also offer the testimony of Davis primarily to establish a record for my appeal seeking to attack the MCA military commission system as a substitute for a civilian criminal trial.


Does the phrase "aiding and abetting" ring a bell? As a defense attorney I'd be very careful about having anything to do with Col. Davis until and unless some opinion from the Air Force's Office of General Counsel was received. Of course the AF OGC is subordinate to the DoD OGC. By the time you litigate the various issues in the various fora, and go up and down the appellate systems a few times, it's possible that the Gitmo detainees will be dead of old age, mooting any appeals. Meanwhile, with a change in administrations in 2009, Haynes won't be DoD GC any longer, which likely will make any testimony by Col Davis irrelevant.

Bart wrote:


You need to understand that the JAG Corps does not have a civilian government structure. The DA and PD are not separate offices with different bosses. A JAGC office is under one officer and the JAG attorneys change roles from prosecution and defense.


That's not accurate. It is the way the Navy and Coast Guard JAG Corps are organized. However, the Army and Air Force have separate trial defense counsel who are assigned to separate commands. The Marines have a separate branch within their JAG Corps "Chief Defense Counsel of the Marine Corps". But, the Marines are subordinate to the Navy, and Navy and Marine JAs may work on the same case -- either as prosecutors and/or defense counsel -- and Marine JAs may also be assigned as line officers, so it's not as bright a distinction as the Army's and Air Force's separate commands for their defense counsel since those are outside the units' and installations' chains of command.
2.27.2008 6:22pm
Hrm:
I'm not sure where I fall on this one.. on the one hand, it's funny to see glory hound Davis at it again.. but on the other, this could make the trial stall even more.. decisions decisions..
2.28.2008 12:14am