7/28/2019 AE 25 Def Rply Gov Resp Def Motn Compel
Depositions).pdf
5/6
Prosecution Response to Defense Motion to Compel Depositions at
12. However, perhaps mosttroubling is the Goveent's recent relice
on Touhyreglations to restrict te Defense'saccess to the civili
OCAs See Attachment C
7. The Defense exchnged numerous emails with the Goveent in an
attempt to ush out the
overnents position on Touhyand how that would impact a ruling by
the Cour. Shockingly,the Goveent assered that it rst became awe of
the possible Touhyissue earlier that veryweek (apparently om the
requested OCAs). Such admission by the oveent is evidenceof the
Goveent's lack of due dili
"gence in this case The fact that the Defense wanted to
interview the relevnt OCAs was not a surprise to the Goveent.
The Defse had requestedthat these wiesses be present at the Aricle
32; requested om both the SPCMCA nd GCMCAto depose e relevnt OCA
witnesses nd reuested contact infoation for the relevnt OCAsThe
fact that the Goveent was just now nding out tat Touhyrequirements
may apply isinexcusable.
8 Ultimately, the Govement appears to have restricted its
interpretation ofTouhy
requirements to onl the Defse's access to the nonDoD OCA
witnesses. The Govementdoes not seem to understd that discovery nd
access to witnesses ows through the trialcounsel The Goveent cannot
hide behind Touhy. This is especially so if the Goveentactually has
had access to the witness (ie to interview that person) n this
instance, theGoveent has had access to the relevant OCAs The
Govement's positon requiring theDefse to submit aTouhyruest, is yet
another example of the Goveent impeding thedefense's access to
these witnesses, d is also in violation of Article 46, UCMJ
9. The ovement's position on witness availability ignores the
practical realities of thesituation. Each of the OCAs is either a
General Ocer or a high ranking civilin employee.4Their respective
duty positions require more thn your average witness coordination.
The
Dese cnot simply dop by the OCAs' duty location or pick up a
phone nd call a specicOCA The Defse would need to coordinate with
each OCA to obtain a time and place for theinterview. Given the
topic of discussion, the interiew would have to be in person, and
at anapproved location. Assuming the OCAs did aee to be
interviewed, the Defense could notdictate the time or the location
of the interview. The relative difculty of dealing with dierentOCAs
and given the location of each OCA almost assures that any interiew
would not takeplace in advance of ial.
20. The interviews of the OCAs should have taken place as par of
the Aricle 32 The fact thatthese witnesses were improply denied has
placed the Defse in the position of relying uponthe OCAs to make
themselves available for ( adversarial) interiew or upon the
Goveent tocoordinate access to these witnesses
. Given the improper denial by the Aricle 32 Investigating Ofcer
of these witnesses; theovernent's previous actions of resing to
provide contact information for the civilian OCAs;
the Govement's last-minute Touhyposition and the practical
difculties involved in
4 This is tre for each individual that conducted a classication
determinaon with the exceptio of CPT JamesKolk.
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