JAG-ged Edge
Trial Defense Services (TDS) Deployed
By: Andrew Efaw

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Monday, 27-Dec-2004 00:00 Email | Share | | Bookmark
Camp Buehring and miscellaneous philosophic ramblings

The Road to Beuhring
"Audacity, audacity, always audacity."
(English translation of the French Proverb)
- General George Patton Jr's Favorite Saying

The op tempo here is killing me. But it does make time fly. One of the reasons that things here have been so crazy is because our cases are clustered into two or three day periods when an MJ is going to be in our AO (area of ops) to preside. The MJ, when she was here, set 27 December as the deadline for all motions, pleas etc. Since that time, we’ve been scrambling to meet that deadline. My philosophy in trying cases is to be aggressive. And for either that reason or bec. the cases are uniquely situated, the present cases have lots of motions assoc. with them, and we are pleading fewer of them—which hopefully translates to a couple jury trials at the end of the month and some good outcomes from those trials. Motions in crim law—not unlike civil—are fact dependent. But unlike civil cases, we don’t have the advantage of 12 months of depos. and discovery. Also, unlike civil practice, the attorney-client privilege almost never attaches to the witnesses, so we have the opportunity and right to speak ex parte with the witnesses and alleged victims. Often counsel on both sides relying on law enforcement investigations and kind of procrastinate on interviewing witnesses and developing the facts. I’ve found both as a prosecutor and now as TDS that the best thing one can do for your case is to interview everyone involved in the case, and you should do it early on. That way you know more about the case than the other side (and the story you find is often very, very different than what the “official� story is) and you get to lock-down the testimony early on (I almost always try to have my 27D or another witness present for rebuttal testimony if my witness changes his story). Anyway, that is probably way more than you wanted to know.

But as a result of this “philosophy,� we decided last night at about 1700 to try and find our way to Camp Buehring in the dark to interview witnesses for a suppression motion. We left, packing heat, as usual on what turned out to be quite the odyssey. The camp is north about an hour and 45 minutes. But to get there is a not very well marked turn into the desert. From there the instructions were to go about 12 miles on the hardball and turn right near a radio tower and go about 5 miles and you’ll find the camp. Well, we missed the first turn—and figured that out by arriving farther north back at Camp Navistar. I stopped at a guard tower somewhere in the dark on I-80 that had a Hummer parked outside. I went with my hand on my 9mm to the tower to find two Kuwaiti soldiers guarding I don’t know what. They spoke exactly two words of English which were “New York� New York is another camp somewhere in the middle of nowhere so I left there not much better off. Finally, we found the road. It was just a flat, flat road into the middle of nothing—no hills, no rocks, no plants—just blacktop and sand. We listened VOA interviewing people a few time zones away talking about the giant tsunami that had killed an estimated 11,000 (by tonight that number had risen to 53,000) and suddenly being up late didn’t seem like that big of deal. We got to the sprawling camp finally only to stumble around in the dark trying to find the unit. “Sir, I have no idea. It changes everyday. That barber trailer right there wasn’t there two weeks ago.� Got back to Arifjan at 0130.

Sunday, 26-Dec-2004 00:00 Email | Share | | Bookmark
Lying Liars and the Lying Lies They Tell

On the 26th, We went up to Camp Doha to meet with an Army polygrapher, Mr. Mitchell, for training. That was a very interesting class. The Army has sixteen criminal polygraphers. They all work for CID, and all of them are warrant officers (WO’s). They are all trained, certified and monitored by DoD. I had recently had Mr. Mitchell testify in a hearaing re a sworn statement he had taken ,and later, he offered to show me how he does the other side of his job---administering lie detector tests. It’s all semi-classified (because counter-intuitively, the more you know about the test and how it works, the lest chance you have of passing the test). But the polygraphers are willing to “share” with TDS attorneys bec. as a group defense attorneys are suspicious that submitting their clients to lie detector tests is not ever in their clients best interests. Often it can be—1) to show the gov’t that your client is not lying; or 2) to gain client control (i.e. “Look, PVT Client, you’re lying to me. We need to plead.”). The class was absolutely fascinating. I came away from it believing that the lie detectors combined with a talented polygrapher do work. I understand why they don’t and never can meet the Daubert test, but they are a good tool for both sides.

Saturday, 25-Dec-2004 00:00 Email | Share | | Bookmark
Christmas in Kuwait

25 December 2004:
"There is no Christmas in a combat zone." ~From the movie, White Christmas

MERRY CHRISTMAS! Got up late again this morning. Our little TDS cell met at 10:30 this morning to open presents. On the 23rd, I got a big box from WTK. Then I got another on the 24th, and I got another one this afternoon (the mail room is open on Christmas here). They sent me my favorite coffee?Dazbog, a big French Press (I intro?d my office to Dazbog and French pressed coffee this morning. They are converts), my favorite poptarts (strawberry), books, a DVD of the Guns of Navaronne (thanks Meghan), gameboys (thank you Cary Allen?s daughter, Laura), Jelly Bellies (I?ve too many of them already), office supplies (which we can really use) and a new thumb drive (which are essential to our vagabondish existence over here). Thank you so much for a very, merry Christmas. I am deeply touched by you generosity and thoughtfulness.

After opening presents, we went to the mess hall for Christmas chow. They really went all out. There was Cornish hen, shrimp cocktail, roast beef, turkey, ham, giant ice sculptures, giant Christmas cakes etc. The food, of course, was about what you'd expect for "cooking for 16,000" but not bad.

After dinner, I went to a black gospel Christmas service. It was pretty neat with a choir that performed choreographed, sign language dance to different Christmas carols. Then, I went running with CPT Curry and the SJA, LTC Roussea (who is also one of my former JAG school instructors). They showed me a 4+ mile loop around the camp. The only time I had run outside before was on the Jingle Jog. It's great to know there is a place to run outside. 4 miles on the treadmill is tortuous. I hope to call home tonight, if I can get a line out. Amy is back. She sent me some pics of the kids. Very homesick. Merry Christmas again.

Wednesday, 22-Dec-2004 00:00 Email | Share | | Bookmark


Monday, 20-Dec-2004 00:00 Email | Share | | Bookmark
A Kuwaiti Kold

20 December 2004:

Worked through the whole weekend. Felt kinda yucky yesterday and have a full fledged cold today. It may be bec. the heat has been out in my room for 5 days. There’s been no hot water for 2 days. And the sweatering heat in the building where I work can’t be turned down. Amy says its bec. I work to hard. I took her advise yesterday . . . sort of. I took work back to my room. But here it is 2245 again, and I’m still here. There’s a 32 tomorrow and another Thursday. They’re both rape cases with amazingly similar fact patterns. I spent half the day interviewing witnesses and the victim and the other half writing a motion about the fuzzy line between indecent sexual acts and, of course, decent ones. Counsel often view 32’s as a freebie that they don’t have to prepare for. But in these cases we are trying to hit the government early and hard. Maybe we can convince the I.O. that the cases have no merit. At the very least, prepping the witnesses puts us in the driver’s seat at the hearing—which will in turn lead to a better bargaining position later. Gotta sleep.

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