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

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Monday, 3-Jan-2005 00:00 Email | Share | Bookmark

03 January 04:

At midnight last night, we got back from picking up CPT Emery on her return from Baghdad. I stayed up until 0130 to make a call to a witness in one of my cases that had redeployed to Florida. Her dad had told me that she would be available at 0130 (5 p.m. FL time). So I stayed up and called and she was not there. Gotta love it.

This morning I got up just in time to go to Court for a 32 hearing. It appeared to be a pretty cut and dried larceny case. While I can’t get into the facts right now, let’s just say when the trial counsel asks that his star witness be read his rights the case suddenly looks better than it did.

I met an officer today from the 42nd ID which is going to be at FOB Speicher in Tikrit. I am supposed to be going the same place and am trying to get the 42nd to take some of my gear up there, so I can fly up unencumbered. I heard from the officer that FOB Speicher has been fairly quiet with the exception of some mortars on New Year’s Day. I also heard today that two of our TDS JAGs were in that mess hall in Mosul that was hit with the bomb about a week ago. They both took some shrapnel and are getting purple hearts.

Someone asked me recently if unfriendly witnesses and victims in courts-martial cases are willing to talk to us and do they have to? The short answer is yes. The rule is that the both sides must have equal access to all witnesses that the government has. The way that plays out is that we always get a chance to talk to the other sides witnesses. Usually there is no issue. You just say I am Major so and so and I need to speak to you about the so and so case and they say okay. I have seen instances when I was trial counsel where the one side told the judge that they had not had equal access to a witness. The MJ would stop the proceeding and say, “okay, how much time do you need?” Sometimes there is a wrinkle though—particularly with victims. I had a young JAG in my office a couple of weeks ago, insisting that since he was the Victim-Witness Liaison, he was entitled to be in my meeting with an alleged victim. I had to not so politely send him packing. Every once in a while, despite the side your on, you will want someone the victim knows in your meeting with you. But its your call, not the other sides. Sometimes you want to get to the witness first to lock in testimony. Sometimes, you want to get there last and develop testimony, counting on being more thorough than the other side and gaining the advantage of the “last word.” And, of course, you can’t control the candidness of a witness. For instance, CID usually is very tightlipped with the Defense but not so with the TC. Those are all things you have factor in.

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