Original Drawing of Judge Col. Denise Lind, presiding in US vs. Bradley Manning (by Debra Van Poolen)
“The Government has pushed this case beyond the bounds of legal propriety. If the Government meant ‘information’, it should have charged information,” explains defense attorney David Coombs in legal filings last week.
Two years ago, Army PFC Bradley Manning was charged with five counts of stealing government property, in violation of federal statute 18 U.S.C. 641. He faces 21 total charges for providing WikiLeaks with classified information at the court martial entering its final stage. After the Government rested its case against PFC Manning, defense lawyer David Coombs detailed how the evidence presented did not support those five 18 U.S.C. 641 charges. He appealed to military judge Col. Denise Lind to dismiss them outright; however, she let them stand. Shockingly, she then stepped away from her role as the “finder of fact,” and into a clearly partisan role by allowing the Government to significantly alter its charges on July 24, 2013–long after all legal arguments had been made.
“Because all of these critical ‘clarifications’ are coming after eight weeks of testimony, and because these offenses carry with them 50 years of potential imprisonment, and because the Defense was actually misled by the Charge Sheet, the Defense requests that this Court declare a mistrial as to the section 641 offenses,” declared Coombs.
This move by Judge Lind allowed the prosecution to switch its theory, alleging now that Manning stole “portion[s] of” databases instead of the entire databases themselves. The change is for the Iraq and Afghan War Logs and the Global Address List. The evidence clearly shows that Manning downloaded Iraq and Afghanistan Significant Activity reports (SigActs), not the entire Combined Information Data Network Exchange (CIDNE) databases, which included far more – and far more sensitive – documents.
This alteration is not semantic. Legally, it’s substantially different than the original charges, and more to the point, it comes long after the government rested its case, precluding the defense from going back to question witnesses differently. The defense moved for a mistrial on those charges.
Under Rule for Courts Martial 915, a military judge may declare a mistrial when “manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.”
Judge Lind denied the defense’s motion for a mistrial on the theft charges last week, and the defense has filed a motion for the court to reconsider. Today, the judge announced that the defense did not request oral argument on the motion, so she will simply take this under advisement. The government has filed a response, but we likely won’t be able to see that until after the judge has ruled.
Coombs lays out the injustice at hand,
The Court has accepted the Government’s
argument that databases = records = information. If this were the case,
how difficult would it have been for the Government to actually charge
“information” in the Charge Sheet? Why did it use the word “database”?
Why are we in a position, three years into the case and after the
presentation of all the evidence, where we have to read one word
(“information”) into another word (“database” or “records”)? Why is it
that the Defense is the party that is penalized for an apparent
misunderstanding of the charged property? Why is the Government not held
to task for using one word (“database”) when it apparently meant
another (“information”)?
To prove a violation of 18 U.S.C. 641, the prosecution must show that
the information allegedly “stolen” was worth more than $1,000. The
government worked to prove its original claim, and now it says that its
evidence proves the changed charge.
The Government itself sought to prove
that PFC Manning stole “databases” (i.e. the receptacle or
infrastructure associated with maintaining the records). Approximately
95% of its valuation evidence took the form of proving the value of the
databases, not the information or the records. This shows that the
Government itself, when it used the word “databases” in the Charge Sheet
meant databases, not information or records. The Defense, seeing all
the evidence that the Government was adducing on the database, was
eminently reasonable in assuming that when the Government charged
“database” it meant “database” (the physical receptacle for the
information).
Coombs cites federal case law involving 18 U.S.C. 641 and “information,” something the government appears not to have studied.
The Defense, and the accused, should not
be penalized for being aware of federal case law on section 641. As the
Defense argued in its motion to dismiss, every federal case where the
theft of information was alleged actually charged theft of information.
The Court failed to reference this fact in its Ruling, apparently
believing that such a factor was unimportant to its disposition.
However, such a factor is critical—since this will be the only
prosecution to be maintained based on theft of “information” where
“information” was not actually charged. A federal accused should not
fare better than a military accused in terms of the notice provided to
him under federal law (i.e. a federal accused’s Charge Sheet will state
that the accused stole “information”, while a military accused must
extrapolate “information” from the word “database”). If the Government
chooses to incorporate federal law, then federal law in terms of
charging and proving the offense, must be followed.
Prosecutors’ negligence of case law might explain their confused and “schizophrenic” theories of what Manning “stole.”
Here, the very property at issue is
subject to dispute. This is, in the Defense’s view, more critical than
who the accused allegedly escaped from, or who the money technically
belonged to. If those cases concluded that there was a fatal variance
between pleadings and proof, so too should have been the case here. The
Government never did establish that PFC Manning stole “databases”
–whether one defines databases as the receptacle alone, or the
receptacle plus the records in that receptacle. And now the Court has
given the Government a get-out-of-jail free card by allowing the
Government to avoid the necessity of proving the value of the
receptacle, even though the Government itself embarked on a mission to
prove the value of the receptacle. In short, not even the Government
knew what it was proving when it charged and pursued the section 641
offense.
Coombs explains why this is irreparably damaging to the defense’s case, with no proper recourse,
Now, after the close of evidence, the
Court has grafted onto the Charge Sheet the word “information” –
something that the Defense did not know it had to defend against until
after it had cross-examined Government witnesses and after it had called
its own witnesses. In short, the Defense did not know of the case to
meet until 24 July 2013, almost two months into the trial, and the day
before closing arguments. The Defense is now left to hope that the
Government has not presented enough evidence to prove a charge that the
Defense did not actually defend against and it does not believe the
Government actually charged.
…
If the Defense had known that when the
Government charged databases, it really meant information, the Defense
would have defended this case very differently.
For one thing, the defense would have better been able to and had
more ground to challenge the testimony of the government’s witness, Mr.
Lewis, on whom it relied to prove the value of the documents charged.Mr. Lewis himself did not seem to understand the government’s case.
…the Defense would have filed a motion to
preclude Mr. Lewis from testifying and from being qualified as an
expert. The Defense would have fully briefed this issue with reference
to relevant case law. The Defense interviewed Mr. Lewis on numerous
occasions prior to the case and Mr. Lewis repeatedly indicated that he
did not know why he was testifying, he did not consider himself an
expert on the value of information, and he would not be able to provide
any value for documents. In fact, on the Friday prior to Mr. Lewis
testifying on the Monday, he still held this position.
Furthermore, Judge Lind accepted the government’s new claim that
stealing records and stealing copies of records are legally the same
thing, without supportive case law.
The Court also has apparently accepted
the Government’s position that there is no distinction between original
records and copies of records both for identifying what was allegedly
stolen and for placing a value on it.
…
Clearly, here there is no question that
the records that PFC Manning sent to WikiLeaks were copies of records
that he maintained on CD. However, the Court is allowing the Government
to argue and introduce value of the production of originals when what
the Government is saying is that PFC Manning converted the copies.
Judge Lind blamed the defense for the confusion because it
didn’t seek further clarification from the government last year. Coombs
explains why this is problematic.
The Court appears to fault the Defense
for not requesting additional specificity in the Bill of Particulars on
the res alleged to have been stolen. See Ruling (“In the bill of
particulars, the Defense posed questions with regard to the Government’s
theory of prosecution. The Defense did not seek more specificity as to
the items charged. Nor did the Defense seek clarification after
receiving the Government’s response.”). The Court ignores the fact that
there was no need to request “further clarification” given that the
Government stated that it was “clear” what property was alleged to have
been stolen or converted—specific, identifiable databases (CIDNE, NCD
and SOUTHCOM). The Court indicated at the time that the details provided
by the Government provided sufficient notice of the charges against the
accused. The Defense was not obligated to further ask the Government,
“Are you sure you don’t mean information? It looks like you probably
meant information, so maybe you should change the charge sheet before
referral.”
…
It is ironic that the Defense was
supposed to read into the word “database” the concept of information,
all while the Government was doing its best to present every bit of
available evidence valuing the actual CIDNE, NCD and SOUTHCOM databases
(excluding the value of the information).
Judge Lind allowed the government to change its sheet to allege that
Manning stole “a portion of” each of the databases at issue, yet the
defense wasn’t on notice that it needed to question witnesses about
“portions” of the databases.
The Defense would have interviewed
witnesses and ascertained for itself what the cost of production of
these records would be. The Defense would not be left simply hoping that
the Government has not met its burden of proof.
Coombs summarizes these points in full.
It is clear from federal case law that
“records” and “information” are different things. The Court’s conflating
of “database” and “records” and “information,” after the close of
evidence, is not a fair or accurate reading of the law and unfairly
prejudices the accused in this case….
If the Defense knew that the property
allegedly stolen was “information” it would have proceeded in an
entirely different fashion. This is true as well if the Defense knew
that the Court would allow the Government to value original records when
no original records were stolen or converted.
…
The accused is still facing the prospect
of life in prison (due to what the Defense submits is an unprecedented
Article 104 charge). There is no need to mar the appellate record in
such a way that it clear that a substantial doubt is cast upon the
fairness of these proceedings.
The judge will take this motion into consideration, amid her
deliberation on the final verdict. If she does not declare a mistrial on
the theft charges, she will be taking the government’s unsupported
position yet again, further prejudicing Bradley Manning, whose trial is
already rife with injustice.
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