Thread by @carolrosenberg

Good morning from Camp Justice. The USS Cole case pretrial hearings resume at 9 a.m. today with arguments on a defense bid to wipe out more rulings by the second trial judge, retired Air Force Col. Vance Spath.
mcclatchydc.com/latest-news/ar…

For deep divers, the war court has already released the transcript of yesterday's Day 1 hearing: mc.mil/Portals/0/pdfs…

Interesting morning in the Nashiri case. For starters, forecasts of former learned counsel Rick Kammen’s looming retirement were premature. Defense lawyer Capt. Brian Mizer notified the judge that Mr. Kamen is not retiring on 12/31, as stated in earlier court filings.

Captain Mizer said in court that Mr. Kammen emailed last night that he is "not resigning from the practice of law at the end of 2019, as intended."
In fact, Captain Mizer told the judge that his team is "exploring" whether Mr. Kammen could continue on the case in "some capacity."

Lead prosecutor Mark Miller said his side supports "the continuing involvement" of Mr. Kammen, and does not oppose his work being funded by the government.

The judge, Army Col. Lanny Acosta, said he has no role on whether there could be two learned counsel on the case.

Much of the morning was devoted to Nashiri's lawyers arguing that the entirety of the proceedings handled by the former, Vance Spath, should be thrown out for not disclosing earlier contacts with victims in the Witt case, which Capt. Mizer handled as an appellate defense lawyer.

First, however, the chief prosecutor, Army Brig. Gen. Mark Martins, disclosed that he was submitting more than 100 pages of ex parte documents -- for the judge's eyes only. They build on the general's slide show from yesterday to justify earlier discovery substitutions.

This afternoon, the judge wants an open-court airing of this...
He wants to know when this happened, who on the prosecution received the transcript of the secret hearing between defense and the earlier judge, other detains -- to try to avoid discovery and motions practice.

Judge Acosta announces the facts: The prosecution requested transcripts of ex parte prosecution-judge hearings in this USS Cole case to prepare for this week's hearing. Somebody "inadvertently" included a defense-judge hearing.

A prosecutor realized what happened, destroyed it.

Defender Anthony Natale adds: The transcript was the defense 'Rosetta Stone' of the case. It sounds like the huddle for defense lawyers to tell the judge their defense theories to consider as he evaluates necessary discovery.

Chief Prosecutor BG Martins expands: His office wrote the Office of Court Administration at 0930 on Nov. 27 requesting the Nashiri prosecution team ex parte transcripts from 2014. A paralegal SSG fetched a classified DVD disc with three PDFs on it around 1100, bought it to IT.

At 1300, IT took it out of 'the packaging,' put it on a laptop to check for viruses, uploaded it to a shared, non-password protected Nashiri team folder at the prosecutor's office -- and there are 2 copies and the disc for a total of 3 copies.

At 1600, BG Martins says he goes to the folder to see Copy 3, and believes he's the first person to go there. In it he spots a transcript dated Oct. 10, 2014, says to himself, "What's that?," doesn't recognize the date and concludes it may be a defense transcript.

(BG Martins says he believes he was the only person to go into that shared drive because only Nashiri team members knew the transcripts were there -- and he asked all four people who were there on the eve of Thanksgiving and who knew about it. And they said they didn't go there.)

BG Martins consults lead prosecutor Mark Miller and they see it as a potential inadvertent disclosure, confirms nobody went in there, consider their obligations as supervisory attorneys and goes about having them destroyed.

After 1600 he's had two deleted -- one in the working drive folder, by BG Martins, and the other in an IT dropbox, deleted by their team paralegal, MasterSgt Grant.
After Thanksgiving, on the Friday, BG Martins confirms that IT destroyed the original disc.

On a direct question from Judge Acosta, BG Martins said "I did not review" that transcript.

"None of us looked at it, and we deleted it," he says, based on an assumption that it was a defense transcript.

Judge Acosta has BG Martins name the four people he said had potential access on Thanksgiving Eve and ... he lists 6.
1. Himself
2. Mark Miller
3. Col. Wells
4. Paralegal Grant
5. LCDR Cherie Jolly
6. Analyst Joleen Sanders.
BG Martins said he confirmed nobody saw it in a huddle.

Defense lawyer Natale wants an independent IT evaluation.
--Spillage episodes have taught that deleting a file doesn't necessary delete a file. Maybe it's retrievable.
--Master Sergeant Grant sent the defense a notice on the issue from an unfamiliar email, causing them to wonder.

--The shared folder where the defense transcript was parked wasn't password protected.
--There should be independent evaluation of metadata showing who handled it at the IT level, at the dropbox and at the shared folder where BG Martins discovered it.

BG Martins explains that, from the SCIFF, the prosecution team uses an email address with a different suffix. Doesn't specify the three-letter acronym.
BG Martins says Mark Miller went to IT to get the disc deleted.

Lead prosecutor Mark Miller says he never opened the ex parte transcript. He suggests the judge frame what happened differently. He considers it "an inadvertent delivery versus an inadvertent disclosure."

Miller says on the day after Thanksgiving he went to the fourth floor IT office and asked what was normal practice with the disc (with the spill on it). He was told it would be destroyed by noon -- and then subsequently heard that had happened.

Judge Acosta is questioning prosecution team members one by one.

Colonel Wells says he was there when BG Martins was asking if anybody had access to that transcript. He said he didn't, arrived late on 11/27, hadn't taken off his coat as Martins was questioning people.

Lt CDR Jolly tells the judge she was in the folder where the defense transcript was parked, but only before the defense transcript arrived.
She said she didn't open the shared folder and never saw the defense transcript.

Defense lawyer Natale asks if any other organization or agency has or had access to the folder -- and if anyone else can recreate the destroyed file that was in the prosecution server.

Judge Acosta asks the chief prosecutor about this.

BG Martins says his IT office is not part of his prosecution organization. He says he's "not prepared to talk about a classified system in this setting." He says he personally verified that the disc was shredded.

Judge Acosta is finishing up for today.

He'll reconvene at 9 a.m. tomorrow with questions he wants to pose about the way forward in handling the 505 substitution process. (The Defense want a role; the prosecution says they can't have one.)