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IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

In Re ) PETITIONER’S WRIT-APPEAL FOR Private First Class (E-3) ) REVIEW OF UNITED STATES ARMY Andrew H. Holmes, ) COURT OF CRIMINAL APPEALS

) DECISION ON APPLICATION FOR v. ) EXTRAORDINARY RELIEF

) The United States of ) America )

) )

Crim. App. Misc. Dkt. No. 20100918

Respondent. ) ) USCA Dkt. No._____ )

TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES:

Preamble

COME NOW the undersigned appellate defense counsel, on behalf

of petitioner and under Rule 28 of this Court’s Rules of

Practice and Procedure, request that this Honorable Court grant

extraordinary relief in the nature of a Writ of Mandamus by:

ordering the United States to honor PFC Andrew Holmes’s right

under the 6th Amendment, U.S. Constitution, to a public trial by

re-opening all portions of the Article 32 hearing or order other

relief deemed appropriate by this Court. A motion for a stay in

the proceedings will be submitted contemporaneously with this

writ-appeal.

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I.

History of the Case

On or about May 14, 2010, PFC Andrew Holmes was placed

under armed guard in Afghanistan. He has remained in pretrial

confinement since that date. On June 15, 2010, PFC Holmes was

charged with, among other things, one specification of

premeditated murder under Article 118, Uniform Code of Military

Justice (UCMJ) and a violation of Article 92, UCMJ for taking or

possessing photos of human casualties. On June 25, 2010, Major

Michael P. Liles was appointed as the Article 32 Investigating

Officer. On November 15-16, 2010, the Article 32 Investigation

was held.

On November 18, 2010 a Petition for Extraordinary Relief in

the Nature of a Writ of Mandamus and Application for a Stay of

Proceedings was filed with the Army Court of Criminal Appeals.

On November 19, 2010, the Army Court of Criminal Appeals ordered

a stay in the proceedings. On January 7, 2011, the lower Court

denied the petition and lifted the stay in the proceedings.

More facts are included below as necessary. Citations to

appellate exhibits below reference the lower record.

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II.

Reasons Relief Not Sought Below

Petitioner has exhausted all avenues of possible relief

below the jurisdiction of this Court. There is potential for

irreparable harm as Petitioner has been denied his right to a

public hearing and to present exculpatory evidence. The

Convening Authority has previously declined to modify the

limitation order in this case to accommodate PFC Holmes’s

rights.

III.

Relief Sought

Petitioner requests that this Court order the United States

to honor PFC Andrew Holmes’s right under the 6th Amendment, U.S.

Constitution to a public trial by re-opening all portions of the

Article 32 hearing or order other relief deemed appropriate by

this Court.

This Court has jurisdiction pursuant to the All Writs Act,

which provides that “all courts established by Act of Congress

may issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and

principles of law.” 28 U.S.C. § 1651(a).

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IV.

Issues Presented

I. WHETHER AN ARTICLE 32 INVESTIGATING OFFICER MAY DE FACTO CLOSE AN ARTICLE 32 INVESTIGATIVE PROCEEDING TO THE PUBLIC BY DENYING THE ADMISSION OF UNCLASSIFIED PHOTOGRAPHS THAT ARE NOT SUBJECT TO ANY GOVERNMENT PRIVILEGE BECAUSE OF A PROTECTIVE ORDER ISSUED BY THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY.

V.

Statement of Facts

On September 7, 2010, Civilian Defense Counsel submitted a

discovery request asking for “all photos that depict human

casualties that were taken between 1 January 2010 and 31 January

2010 that serve as the basis for Charge IV in United States v.

PFC Andrew Holmes.” Petitioner’s Appellate Exhibit (PAE) 2.

Later that day, Trial Counsel sent an e-mail indicating that the

photos would not be provided to the defense and that the defense

was welcome to inspect the photos. PAE 3.

Following Trial Counsel’s email, Civilian Defense Counsel

immediately sent a request to the Investigating Officer asking

that he order the government to produce the requested photos

under R.C.M. 405 (f)(10). PAE 4. On September 8, 2010, the

Investigating Officer ordered the government to respond to the

request by September 10, 2010. PAE 5.

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On September 9, 2010, the Investigating Officer sent

another e-mail asking Trial Counsel whether there were “any

issues with the evidence in question that could compromise

National Security, or current OPSEC regulations?” PAE 6. Trial

Counsel replied that the “way forward is being addressed.” PAE

6.

On September 10, 2010, Trial Counsel sent an e-mail

stating, without elaboration, that the “Government is not at

liberty to release the photos at this time. National security

issues are involved. We expect the SCMCA to issue a protective

order regarding access to the photos.” PAE 7.

Civilian Defense Counsel immediately responded as follows:

“Firstly, under RCM 401 (d), if the government is going to try to cloak this hearing in secrecy in the name of national security based on evidence that is unclassified, the rules for courts-martial require that the charges be forwarded to the general court-martial convening authority rather than the SPCM Convening Authority. [National security matters are also discussed in R.C.M. 407 (b)]. The photos in question are not classified and are not official government communications. In that regard, Mil. R. Evid. 505 and 506 do not apply. The overused term "national security" is being utilized here in an effort to protect perceived government interests at the expense of PFC Holmes. Secondly, the issuance of a protective order does not preclude the government from disclosing the evidence to the defense. A protective order would merely limit the role of counsel or others in disseminating information not yet in the public record. No protective order can preclude the dissemination of

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unclassified information placed into the public domain. Disclosure, again, is mandatory. We fully understand and are sympathetic to the view that these photographs present difficulties and could have a deleterious effect on the war effort in Afghanistan. We also understand that there is a constitutional obligation to balance the interests of PFC Andrew Holmes with the interests of the nation. The solution is not to cloak this trial in faux-secrecy, but rather to withdraw the charges against PFC Holmes associated with these photos and declare that the interests of national security outweigh further prosecution under RCM 407 (b). This firm, more than most, understands the lessons learned by the Army from prior experiences regarding the placement of photographs into the public domain through an Article 32 Investigation. The remedy, again, is withdrawal of the charges associated with these photos and the release of PFC Holmes from pretrial confinement. Convoluted efforts to deprive our client of a public trial are not the answer.” PAE 7.

Unknown to Civilian Defense Counsel until September 13,

2010, the government delivered discovery to the Trial Defense

Services office at Fort Lewis, Washington on September 9, 2010.

PAE 8. Included in the discovery were the photographs presently

in dispute. The discovery was certified delivered with a

transmittal form. On September 13, 2010, the Senior Defense

Counsel at Fort Lewis sent the following e-mail memorializing

what transpired:

“On Thursday, 9 SEP 10, the Gov’t served on this office 13 copies of discovery related to each of your cases and shortly thereafter returned to this office and took back all of this discovery. I have attached the DA 200s certifying delivery to TDS of your discovery; I have also attached the [sic – discovery

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index]. Summarized below is what happened. Later today I will send out the Memoranda for Record being drafted by me, MAJ Carol Brewer, CPT Sandra Paul, and SPC Gennypher Popenhagen describing our recollections of what happened. I have tried to include all involved counsel and have cc’d all RDCs detailed to support GCM cases. These were duplicate discovery packets, one for each case (counsel would have been responsible for making copies as needed), plus one for this office to help with duplication. Among the 1000+ pages of discovery were photos of three dead Afghans with three different Soldiers posing, holding up the decedent’s head. (Each photo was one Afghan, one Soldier.) Bates stamp numbers of the photos were 001057- 001068. After service on this office, the TCs returned to demand return of the documents from our Paralegal, SPC Popenhagen. She returned all but one packet, which had already been provided to CPT Paul, who happened to be meeting with her client at the time of service. There followed an exchange of demands and refusals to return the photos. At one point, both the Chief of Justice, LTC Kevin Kercher, and the SJA, COL Walter Hudson, were in the TDS office demanding return of the photos. CPT Paul and MAJ Brewer, the Acting-SDC, refused. Ultimately, the SJA provided to us a written order from the SPCMCA ordering return of these photos. We do not believe this is a lawful order (copy to be provided with the MFRs). I spoke with LTC Kercher a little while ago; he assured me disclosure of these discovery packets, absent the photos described, will be made tomorrow at 0900. The forthcoming MFRs will describe the details. I am most concerned about two things: 1) the Gov’t believes that it has the authority to retrieve already-provided discovery; and 2) the Gov’t believes it has the authority – absence reliance on any MRE, RCM, or case law – to order TDS counsel to do anything. I am sure you are concerned that this office is no longer a safe extension of your own places of business, but let me assure you that every member of this Trial Defense Service office is committed to ensuring all of your

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Soldiers receive every benefit available under law, regulation, and ethical canon.” PAE 9.

Senior Defense Counsel provided a more detailed memorandum

on September 22, 2010. PAE 10. On September 15, 2010, Civilian

Defense Counsel sent a memorandum to the General Court-Martial

Convening Authority and Staff Judge Advocate requesting their

recusal. PAE 11. On September 21, 2010, the Special Court-

Martial Convening Authority issued the limitation order

regarding the photographs in question. Government Appellate

Exhibit. GAE 3. The order basically dictated that images of

human casualties “may not be distributed to any persons outside

of personnel assigned to CID.” GAE 3.

On October 13, 2010, the defense requested the appointment

of Dr. Michael Baden as a forensic pathology consultant. The

Article 32 investigative proceeding began on November 15, 2010.

The government did not provide copies of the relevant

photographs to the defense; nor did the government take any

action on the defense request for a forensic pathologist.

At the Article 32 Investigation, the government called Army

Criminal Investigative Division Special Agent Aaron Vantilburg

as a witness. The following testimony and objections occurred:

“G: Have a seat right there. Will you please state you name and unit of assignment?

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AV: Aaron Vantilburg. Special agent. Joint base Lewis-McChord CID office.

G: Agent Vantilburg, what is your involvement with the U.S. vs. Holmes case?

AV: Currently I am filling a request for assistance and storage of the digital media collected during the course of the investigation.

G: And have you had the opportunity to view photos of the accused, Private Holmes, with departed Afghanis?

AV: Yes, sir.

G: Can you please describe for the Investigating Officer what you’ve seen?

AV: The accused kneeling down behind a… the corpse of a deceased person holding the head up by the hair.

G: Does it appear that the Accused is posing in the photo?

AV: Yes, sir.

G: As…

D1: Wait a minute. Excuse me here. We’re going to object to this line of questioning.

IO: Okay, sir.

D1: Now there are photos and the best evidence of those photos is the photos. He’s already asked the man to speculate as to what my client’s vision of what he was doing at a time in the past of concern. That’s something you could determine? By looking at these photos yourself?

AV: Yes, sir.

D1: This man is utterly incompetent to provide that testimony. So the government either produces the

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photos or you rule this man shouldn’t be testifying. Thank you.

G: Well, sir, may I be heard?

IO: Please.

G: As you know there’s an order that protects those photos dissemination including during these proceedings. So in effect, Special Agent Vantilburg’s testimony is the best evidence since the photos are not available to us.

D1: If the gentleman is suggesting that this is a closed proceeding, which he is, then I’d like you to tell me that you’re closing it.

IO: I suggest this isn’t a closed proceeding in my opinion. I believe there’s a couple of avenues we can approach to view the photos. I may have to seek counsel just to make sure that I’m within the regulation in the order.

D1: The order is irrelevant to the 6th Amendment, Right to a Public Trial. The order isn’t worth the paper it’s written on for 6th Amendment purposes.

IO: Your objection is noted, sir. I’m going to take a ten minute recess. I need to seek my counsel in this.”

The Investigating Officer, following the recess, provided

the following ruling:

“IO: … Okay. I’m faced with a couple things here. The defense in the past has stated that there’s a definite need to keep the hearing open for PFC Holmes’s rights and I agree with that. I think that’s very important. The second thing I’m faced with is the protective order that prevents me from moving the photos out of CID. I have to stick with that order and if we were to go to CID, it would become a de-facto closed hearing based off the size over there. We could not get everybody into the hearing. I’m going to go ahead

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and allow Special Agent Vantilburg’s testimony however I don’t want to hear any of your opinion. I just want to hear what’s in the photos. It’s got to strictly be the photo has “this.” Okay?

G: Yes, sir.

D1: If I may…

IO: Yes, sir.

D1: We strenuously object to your position on this.

IO: Yes, sir.

D1: For two reasons. Number one, you have denied my client a public trial in a de-facto fashion by what you’ve done. That’s firstly. And secondly, you’ve violated the confrontation clause because I can’t possibly cross-examine this man on photos that are not in evidence. Accordingly, if that is your decision, I wish to present you with an extraordinary writ which will be filed with the Army Court of Criminal Appeals seeking an injunction of these proceedings until such time as the issue is raised.

IO: Yes, sir. Your objection is noted, sir.

D1: We’ll present a copy of that to the government as well. May I have one of my [military counsel excused] so that I can call the defense appellate division so we may file this with the court?

IO: Yes, sir.

G: Sir, based upon your limitation of the testimony, I think you’ve already heard what appears in the photo by what Special Agent Vantilburg has already said. So I have no further questions.

IO: Okay. You’re dismissed. I’m sorry. Does the defense wish to cross examine?

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D1: In light of the confrontation clause violation, I do not wish to cross-examine because we have no basis upon which to cross-examine. None whatsoever.

IO: Yes, sir. Does either party think they’ll need to recall this witness?

G: Not the government, sir.

D1: No.

IO: You’re permanently excused. Do not discuss your testimony with anyone except for the parties present. Should anyone else attempt to discuss this case with you, refuse and report it to me immediately.”

The government also called SPC Ryan Mallett during their

case-in-chief. He provided testimony relevant to the analysis of

the photographs in dispute. SPC Mallett essentially testified

that he was 90 feet away from PFC Holmes and his team-leader

[CPL Jeremy Morlock – also a co-accused] during the alleged

murder in La Mohammed Kalay, Afghanistan. PFC Holmes was also

initially approximately 80-90 feet away from CPL Morlock on a

hill providing security in the opposite direction as CPL

Morlock.

SPC Mallett saw CPL Morlock call a local national in a

nearby poppy field over to CPL Morlock’s position behind a mud

wall. PFC Holmes, again, was 80-90 feet away facing the

opposite direction. SPC Mallett heard CPL Morlock call for PFC

Holmes to re-position himself next to the team leader. PFC

Holmes ran down a hill with his Squad Automatic Weapon.

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SPC Mallett testified that he saw PFC Holmes re-positioned

on a knee behind the 5-foot high mud wall providing security

down a road leading away from the local national. CPL Morlock

had stopped the local national at a distance of about 9 feet on

the other side of the five-foot high wall. SPC Mallett saw CPL

Morlock going through the standard Escalation of Force

procedures used prior to searching local nationals, including

telling the man to stop, to lift his shirt, and to turn around.

SPC Mallett momentarily turned his attention to his own

security sector. He then heard CPL Morlock yell “He’s got a

grenade! Grenade! Holmes shoot him!” He saw PFC Holmes stand

behind the wall and fire 8-10 rounds from his Squad Automatic

Weapon (SPC Mallett and PFC Holmes accounted for their missing

rounds following the engagement). SPC Mallett testified that he

saw the rounds impact another mud wall nearby. For that reason,

SPC Mallett believed that PFC Holmes’s shots missed the local

national.

The momentary burst of gunfire stopped almost immediately

when the grenade exploded. SPC Mallett heard CPL Morlock yell

“Get Down!” He saw CPL Morlock grab PFC Holmes by the back of

his uniform and pull him to the ground. PFC Holmes was so

surprised that he left his Squad Automatic Weapon on top of the

wall. It fell down onto his head.

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According to SPC Mallett’s testimony, PFC Holmes nearly

took shrapnel from the grenade and was pretty shaken up. After

the grenade exploded, CPL Morlock stood up and fired several

rounds at the body. When the rest of the platoon responded, the

Platoon Leader ordered a staff sergeant to “make sure [the

victim] was dead.” The staff sergeant fired at least one round

into the man’s back.

PFC Holmes’s entire involvement from his running down the

hill to the moment that the grenade exploded took less than

approximately 60 seconds.

The government’s theory in this case, based upon a

statement by CPL Morlock, is that CPL Morlock threw the grenade

at the local national and ordered PFC Holmes to fire his weapon.

According to the charges, PFC Holmes allegedly conspired with

CPL Morlock to stage the killing such that it appeared that the

local national threw the grenade and PFC Holmes fired in self-

defense.

The defense theory is that PFC Holmes did not know that the

killing was staged and that he was used by his team leader as a

cover story.

Following the death of the local national, PFC Holmes was

placed in a security position while the body was cleared. In the

presence of most of the leadership of the platoon, several

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photographs were taken of the body. There also exists two

photographs of CPL Morlock and PFC Holmes each squatting alone

next to the body. PFC Holmes was called over from his security

position to participate in one of the photos. In one photo, CPL

Morlock is kneeling next to the victim while lifting the

victim’s head by his hair several inches off of the ground. CPL

Morlock is leaning over next to the victim’s head and smiling

into the camera while wearing his sunglasses. In the photo of

PFC Holmes, he is kneeling next to the body. He is holding the

victim’s head by the hair. PFC Holmes’s demeanor in the photo

appears shaken up. There are also several other photographs of

the victim’s body that are relevant to the forensic pathology

analysis. Those photos demonstrate that PFC Holmes did not

cause the victim’s death. PFC Holmes is charged with taking or

possessing those photos.

While the photographs are plainly evidence of a violation

of a general order prohibiting the taking or possessing of

photos of human casualties, the photos are also exculpatory to

the charge of premeditated murder. The defense view is that the

wounds in the photographs are inconsistent with machine gunfire.

In other words, PFC Holmes did not cause the death of the

victim. The fact that PFC Holmes missed from 9 feet with a

machine gun and was nearly killed by a grenade makes it more

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probable than not that he did not conspire to commit

premeditated murder of the local national.

During the defense case at the Article 32 investigative

proceeding, the defense offered the photographs as exculpatory

evidence to the charge of premeditated murder. The following

exchange occurred:

“IO: Okay. Does either party have any other evidence to present?

D1: Yes, we do. At this juncture and in light of the Mallett testimony regarding the manner in which the victim was shot, we now move into these proceedings the admission of the photographs that are currently in the position of the CID. We will need them to examine both… is it PFC Mallett?

G: Yes, sir.

D1: PFC Mallett and Sergeant Sellers because we now believe that these photographs are exculpatory in nature as they disclose wounds inconsistent with the allegation of murder by SAW and the only way that you are going to be able to ascertain this and put evidence on the record is for us to examine someone who saw these pictures, can authenticate them as being the wounds sustained by the individual who is alleged to be the victim and can be examined as to the location of wounds and perhaps even type of wound. Although we have not yet been granted a forensic pathologist, there are certain things that are self evident but need to be testified to so that the record can be made. So at this juncture we would ask that the pictures be taken from the CID, brought to this place so that we can have an open hearing and examine witnesses who are competent to testify as to the authenticity of those pictures. I presume that you

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wish to discuss this matter with your legal advisor and so I would request a recess.

[NOTE: The testimony of SGT Sellers is mentioned in the proffer because the government called him as a witness to testify about photographs that he took. He did not testify about the content of the photos – merely that he had taken photographs of the victim in PFC Holmes’s case. SGT Sellers was an intelligence analyst. The government did not offer the photographs into evidence. When the defense later interviewed SGT Sellers during a recess, he realized that he had not taken the photographs of the victim in PFC Holmes’s case. He was testifying about photographs related to a different incident than the one involving PFC Holmes. He was quite dismayed that he had provided inaccurate testimony. The defense later re-called SGT Sellers to clarify that he was not involved in the taking of any photographs related to PFC Holmes’s case.]

IO: Yes, sir. Government?

G: Well, sir. We heard testimony about the nature of the wounds and you have that to consider but apart from that, sir, the protective order issued by the convening authority prevents what the defense is asking. And we have no way of getting around that unless Colonel Huggins changes his mind.

IO: Roger.

D1: And we believe that remains as we’ve said previously, too, a deprivation of my client’s sixth amendment right to a public trial. Now, by doing this we eliminate the confrontation issues of course that I raised earlier with respect to the CID agent but none the less, it still comes down to the simple question of whether or not those pictures, sequestered as they are, create an environment where you, of necessity, must close the proceeding. I don’t even view this as a discretionary matter on your part. I believe that the order itself, suggesting that these documents can

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be taken into evidence without the benefit of examination, is facially defective on sixth amendment grounds. Therefore I would like you to rule on this point. We will, of course, respect what you rule but we need a ruling so that we can present a fully ripened case to the Army Court of Appeals.”

The Investigating Officer received the following legal

advice:

“IO: I’ll tell you what my legal counsel advised me to do. He advised me to call Colonel Huggins, the Convening Authority, and ask him to modify the order so we can bring photographs over here from CID. Colonel Huggins will not do that. He does not want to modify the order. You’ve already objected to closing. From what I understand this is pretty much is a large objection to closing the hearing?

D1: It is. It is. And I tell you it’s going to be…. That document was prepared before today.

IO: Yes, sir.

D1: Had to be. Under the circumstances.

IO: Yes, sir.

D1: It needs to be modified factually to conform to the contours of what actually occurred. The concept is identical but the facts are different so there will be another document presented to you that will cover that point. And I understand the dilemma here and we’re not unmindful…

IO: I hope you know there’s nothing more than I would like to do than to go over there with everybody and look at this stuff…

D1: I really get it and I understand the dilemma completely. Vigorous representation requires us to do this and you have to do what you’re required to do. We respect that.

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IO: Yes sir.

D1: And the government, in the same fashion. There’s nothing about being angry or upset. This is merely about the way our legal system thankfully works.

IO: It’s about this young man.

D1: Exactly. So we respect what you have to say. We object to it. We will seek injunctive relief from the Army Court of Criminal Appeals once we have adjusted the facts to the contours of the case today.”

VI.

Reasons Why Writ Should Issue

On January 7, 2001, the Army Court of Criminal Appeals

denied the petition without oral argument or discussion.

Petitioner, however, submits a number of grounds, discussed

below, for which the relief sought should be granted.

Firstly, an accused in a criminal trial shall possess a

right to a public trial guaranteed under the Sixth Amendment of

the U.S. Constitution. See generally Waller v. Georgia, 467

U.S. 39, 43 (1984). This Court affirmed that right in Powell

stating that “[A]bsent cause shown that outweighs the value of

openness, the military accused is . . . entitled to a public

Article 32 investigative hearing.” ABC, Inc. v. Powell, 47 M.J.

363, 365 (C.A.A.F. 1997).

The right to a public hearing is codified in R.C.M. 806 and

405 (h)(3). Furthermore, under the Sixth Amendment an accused

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possesses a right to present a defense and confront and cross-

examine the accuser. See United States v. Scheffer, 523 U.S.

303, 308 (1998).

By denying the defense the ability to present exculpatory

photos to the Investigating Officer on account of an

unconstitutional limitation order from the Special Court-Martial

Convening Authority, Respondent denied Petitioner his right to

public hearing. Further injury was caused when Respondent

called, above defense objection, a special agent to provide an

oral description of the photographs in question. In other

words, Respondent used the limitation order to permit them to

indirectly introduce incriminating evidence while denying

Petitioner the ability to use the same evidence directly for

exculpatory purposes.

Under R.C.M. 405(h)(3), Respondent failed to demonstrate an

overriding interest that outweighed the value of an open and

public Article 32 investigative proceeding. See R.C.M.

450(h)(3), 806(b)(2). By not allowing relevant photographs that

are unclassified and not subject to any government privilege

into an open and public Article 32 investigative proceeding, the

Investigating Officer effectively denied PFC Holmes of his

rights guaranteed under the Sixth Amendment to an open and

public hearing, as codified in R.C.M. 806 and 405(h)(3).

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Additionally, under R.C.M. 806(b)(2), Respondent failed to

satisfy the four-prong test required to overcome the presumption

that an accused shall enjoy a Sixth Amendment right to an open

and public trial. Under R.C.M. 806 (b)(2), Respondent should

have been required to demonstrate:

(1) a substantial probability that an overriding

interest will be prejudiced in the proceedings

remain open;

(2) that closure is no broader than necessary to

protect the overriding interest;

(3) that reasonable alternatives to closure were

considered and found inadequate; and,

(4) that case-specific findings are on the record

justifying closure.

The United States Supreme Court has recognized that the

right to a public trial is one created for the benefit of the

defendant. Waller, 467 U.S. at 46. The right ensures that the

public may see that the defendant is “fairly dealt with and not

unjustly condemned . . . .” In re Oliver, 333 U.S. 257, 270

n.25 (1948). The knowledge that every criminal trial is subject

to review in the forum of public opinion is an effective

restraint on possible abuse of judicial power. See id. at 270.

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A de facto closed portion of the Article 32 investigative

proceeding deprived PFC Holmes of the transparency necessary in

the military justice system to ensure the fairness and integrity

of the system. Although the Investigating Officer declined to

physically close the Article 32 investigative proceeding to the

public, the Investigating Officer effectively closed the hearing

by denying PFC Holmes the ability to offer the exculpatory

photos into evidence.

The result in a highly-visible case such as this is that

PFC Holmes is subjected to secretive proceedings and months of

negative public attention prior to his trial. As the United

States Supreme Court has recognized, great regard is placed on

the value of an open and public criminal proceeding. Here, the

nature and magnitude of this case weighs heavily in favor of an

open and public Article 32 investigative proceeding.

Also, by restricting the photographs from the Article 32

investigative proceeding, PFC Holmes’s constitutional right to

present a defense and confront and cross-examine the accuser is

violated. Although an accused’s right to present relevant

evidence is not unlimited, “[r]elevance is the key to

determining when the evidence is constitutionally required to be

admitted.” United States v. Jensen, 25 M.J. 284, 286 (C.M.A.

1987).

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In this case, the photographs—that are unclassified and not

subject to any government privilege—are highly relevant and

provide exculpatory forensic evidence regarding the murder

specification. The limitation order and subsequent order

refusing to admit the photographs clearly abridge PFC Holmes’s

constitutional rights guaranteed under the Sixth Amendment to

present relevant evidence and cross-examine the CID officer

regarding evidence contained within the photographs.

Further, Trial Counsel, in violation of R.C.M. 405

(g)(5)(a)(i), called a CID Special Agent to provide an oral

description of the very photos that the government refused to

provide to the defense. The Investigating Officer allowed the

testimony of the special agent. It is troubling that an accused

combat veteran in pretrial confinement may be denied the ability

to present exculpatory evidence while the government indirectly

uses that very evidence for incriminating purposes.

Finally, prior to referral, there is no other avenue of

relief for PFC Holmes to ensure that his Sixth Amendment rights

are scrupulously honored. A closed hearing deprives PFC Holmes

of the transparency necessary in the military justice system to

ensure the fairness and integrity of the system. The result in

a highly-visible case is that PFC Holmes is subjected to

secretive proceedings and months of negative public attention

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prior to his trial where he has no ability to offer the

photographic evidence in support of his defense and cross-

examine the accuser.

VII.

Respondent’s Address, Telephone, and Facsimile Number

Respondent can be contacted at Government Appellate

Division. Their address is 901 N Stuart Street, Ballston Room

309, Arlington, VA, 22203. The phone number (703)588-1908. The

facsimile number is (703) 696-8093.

CONCLUSION

WHEREFORE, Petitioner respectfully requests this Court to

grant the requested relief.

Respectfully Submitted,

__________/s/____________ Daniel Conway Attorney for Petitioner C.A.A.F. Bar No. 34771 Gary Myers & Associates 78 Clark Mill Road Weare, NH 03281 Phone (NH): 603-529-3455 Fax: 603-529-3009 conway@mclaw.us

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CERTIFICATE OF FILING AND SERVICE

I certify that a copy of the foregoing was transmitted by electronic means with the consent of the counsel being served to Major Adam S. Kazin, on January 10, 2011.

__________/s/___________ Daniel Conway Attorney for Petitioner C.A.A.F. Bar No. 34771 Gary Myers & Associates 78 Clark Mill Road Weare, NH 03281 Phone (NH): 603-529-3455 Fax: 603-529-3009 conway@mclaw.us

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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Rule 24(d) because: This brief contains 5,535 words,

2. This brief complies with the typeface and type style

requirements of Rule 37 because:

This brief has been prepared in a monospaced typeface using Microsoft Word Version 2007 with Courier New, font size 12.

__________/s/____________ Daniel Conway Attorney for Petitioner C.A.A.F. Bar No. 34771 Gary Myers & Associates 78 Clark Mill Road Weare, NH 03281 Phone (NH): 603-529-3455 Fax: 603-529-3009 conway@mclaw.us