Manning judge alters charges to assist Gov’t ahead of verdict
By Nathan Fuller and Jeff Paterson, Bradley Manning Support Network. July 28, 2013.
“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.