By

Benjamin Wittes and Wells Bennett
Tuesday, July 17, 2012 at 3:36 PM

We’re back and taking up AO 77, the defense motion to compel the funding of another defense consultant, one Dr. Elizabeth Loftus, a forensic psychologist. (Government response (Part 1 of 6): here. Defense reply: here.) Kammen says he requested Loftus’s services and gave a barebones description of his need for her to the Convening Authority so as not to reveal client confidences. The request was denied. The defense then gave the Convening Authority more information on an ex parte basis. And when the Convening Authority turned the defense down again, the defense sought judicial review. We would like, Kammen says to the judge, to submit materials to you in camera and ex parte for your consideration of this motion.

Back up, says Judge Pohl. What if I only have before me the motion you submitted to the Convening Authority? Is that enough to resolve the issue? Kammen gives a long-winded answer that basically amounts to a yes. He and the judge agree, after a lengthy exchange, that Judge Pohl doesn’t need to see the ex parte material if he grants the motion based on the open submission. Again, however, Kammen doesn’t seem to want to take yes for an answer;  he seems almost disappointed at the idea that he might win on the basis of the public record.

Mattivi gets up and argues that the defense has not made a sufficient showing of necessity to approve this expert. The defense is asking for a very specialized expert in the field of forensic psychology, he says, and it already has a general expert in forensic psychology. They want an expert in the field of degraded memory over time. We submit that their current expert is adequate for that purpose. And on that basis, we submit that the Convening Authority’s original decision is the right one, he says.

Judge Pohl asks whether the government intends to submit as evidence any statements by the accused. Yes, Mattivi responds.

Kammen rises and compares the government’s position to saying that expertise in labor law would be irrelevant if one already has a criminal lawyer. There is nothing in the background or expertise of the current psychologist that makes him adequate for the purpose for which the defense wants to use Dr. Loftus at the present time, he says.

Mattivi then throws the judge a curve ball. He rises and suggests that this is one of those rare circumstances where he has no objection to the judge’s looking at the defense’s ex parte and in camera submission. Judge Pohl seems surprised—though Mattivi is actually being consistent with the position that the prosecution has taken in the past on this specific question. And Kammen is momentarily tongue-tied. But the road forward seems suddenly clear.

Judge Pohl defers ruling on this matter too.