The dilemma of how to go forward with the USS Cole death-penalty trial after the capital defense lawyer quit loomed over this week’s hearing — with prosecutors authenticating signatures on packages of evidence from the 2000 bombing site, and a defense attorney refusing to participate.
The judge, Air Force Col. Vance Spath, repeatedly rejected an argument by the lone defense lawyer, former Navy SEAL Lt. Alaric Piette, that the hearings should cease until an experienced capital defense attorney reaches court.
At one point, the judge scolded Piette for mounting no defense in a pretrial hearing and urged the 2012 Georgetown Law graduate to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Piette has never worked on a capital defense before and does not meet the American Bar Association standard for death-penalty defense counsel, an argument the judge rejects.
The crisis was sparked by the resignations in October of three civilian defense attorneys on ethical grounds. In November, Spath rejected their resignations and then convicted their supervisor, Marine Brig. Gen. John Baker, of contempt of the war court for releasing them from the case — a conviction the general is appealing in federal court claiming a due-process violation and judicial overreaching.
Monday, the judge pressed ahead with pretrial preparation as prosecutors called a series of FBI agents and technicians from the time of the Oct. 12, 2000 warship bombing to authenticate their signatures on evidence bags collected at the site. In one instance, FBI agent Jeffrey R. Miller testified that he had signed another agent’s name to some evidence because Agent Robert Holley was otherwise occupied — a sign of the crime-scene chaos even days after the al-Qaida attack on the warship off Aden, Yemen.
Former CIA captive Abd al Rahim al Nashiri, 53, is accused of orchestrating the attack that killed 17 U.S. sailors and wounded dozens of others. Prosecutors are seeking the death penalty.
Two suicide bombers pulled a skiff alongside the Cole while it was on a refueling stop, and blew up the boat.
The agents arrived at the foundering destroyer days later to recover some of the dead and scoop up charred evidence. FBI Special Agent Lisa LoCascio, a 1982-1998 Miami-Dade cop, described very difficult 110-degree-plus working conditions below deck amid jagged metal in the dark and an “overwhelming” smell she knew from her time as a Miami-Dade homicide detective.
The agents had to move evidence from ship to shore then onto a U.S. Navy amphibious assault ship, the Tarawa, in a multi-stop journey to the FBI lab at Quantico, Virginia. The Tarawa sailed to Dubai, where the evidence was transferred to a U.S. charter that made an overnight stop at a military base in Germany before heading to the Norfolk Navy base, where FBI lab technicians collected it.
Monday’s hearing involved agents authenticating their signatures on chain-of-custody sheets that showed just four or five stops, including at one point an agent turning evidence over to herself. Yet Piette declined to question the witnesses, declaring he was taking “no position other than to object to this proceeding taking place without learned counsel.” Learned counsel is the American Bar Association’s term for a qualified death-penalty defender.
Piette took no position 32 times in court on Monday alone.
His position prompted a case prosecutor, Air Force Maj. Michael Pierson, to read a statement into the record accusing both the attorney present and those who were absent of a “shameless, disingenuous, and conceited course of conduct” that will not succeed “in ultimately frustrating justice.”
In court Friday, Spath quizzed the deputy chief defense counsel for military commissions on plans to get a learned counsel to court. Army Col. Wayne Aaron, who began supervising the case after the judge jailed the chief defense counsel, said he had found someone and forwarded that lawyer’s name to a senior Pentagon official, Harvey Rishikof, who decides on hiring and spending at the war court.
Learned counsel earn the federal rate of $185 an hour, and the unnamed person Aaron selected is a civilian with no previous war court experience and no security clearance, meaning it could be some time before that lawyer gets to court. Spath has also asked Rishikof to work on mobilizing a Navy Reservist, Cmdr. Brian Mizer, who has USS Cole case defense experience.
Spath considers Mizer qualified to serve as a death-penalty defender, although Piette and others say Mizer doesn’t meet the ABA definition of a learned counsel. Secretary of Defense Jim Mattis may have to weigh in on the question of whether to mobilize Mizer, who has refused to come to court voluntarily.
Friday, Aaron opposed the resumption of the hearings, telling Spath, “We would be risking a great deal to allow this proceeding to continue without our client having the clear right to learned counsel.”
Spath cut his fellow colonel off, declaring, “Those are great talking points. You know what learned counsel are? They’re people who go to training.”
Later the judge turned his ire on Piette for continuing to declare himself unqualified to litigate without an experienced death-penalty defender guiding him.
“What saddens me is that military officers don’t recognize, with your experience, you’re every bit as qualified and competent, frankly, as many capital counsel that I’ve watched appear in courts,” said Spath, who has been a military judge for the past six years and chief of the Air Force judiciary for four. “It’s embarrassing that we will sacrifice the performance and competence of military counsel for this belief that some civilian is so much better than you.”
For this week’s session the judge had prosecutors issue subpoenas to two of the three resigned civilian lawyers — Pentagon paid attorneys Rosa Eliades and Mary Spears — then postponed what to do about their refusal to appear until the next session, scheduled for Feb. 12-23.
Spath also said in court that he is awaiting decisions from two federal courts on two challenges to his authority before addressing the absence of Rick Kammen, Nashiri’s long-serving learned counsel who quit the case after nearly a decade of representing him.
In response to a question about the Military Commission Defense Organization (MCDO) seeking the Convening Authority (CA) hiring of an as-yet unidentified attorney to replace the resigned learned counsel Rick Kammen for Abd al Rahim al Nashiri , spokeswoman Cmdr. Sarah Higgins replied by email Jan. 17 with the following:
“Generally, when a qualified learned counsel name is submitted by MCDO to the CA, the CA will take action towards formally appointing the learned counsel. In this case, however, Mr. al-Nashiri still has assigned learned counsel representation in the form of Mr. Kammen, who has not been released by the military judge of his representational obligations. Additionally, the military judge has directed the Office of the Convening Authority to take steps to effectuate the recall of Cmdr. Brian Mizer to represent Mr. al-Nashiri. Cmdr. Mizer is also qualified as learned counsel in this case. Finally, one of the two remaining civilian attorneys ordered to appear by the military judge, Ms. Rosa Eliades, is capitally-qualified and trained as a learned counsel. Therefore, in light of the various unresolved issues surrounding the learned counsel question, the CA is not expected to act upon the MCDO nomination of a new learned counsel until the other avenues are resolved.”