5800
Ser TJC/024
9 March 2001
From: CDR James P. Winthrop,
JAGC, USN
To: Commander Naval Air Force ITS Atlantic Fleet
Subj: RECOMMENDATION OF THE
INVESTIGATING OFFICER IN THE CASE
OF UNITED STATES V. CTR1 DANIEL M. KING, USN
Ref: (a) COMNAVAIRLANT ltr
5800 Ser N02L/300 of 20 December 1999
1. In reference (a) you
directed me to conduct a pretrial investigation in the subject case. As
the investigating officer it is my duty to investigate the charges
impartially and to recommend an appropriate disposition of those
charges. Although I recognize this is an extraordinary step in light of
the fact that the investigation is not complete, I am compelled to
recommend that you dismiss the charges in this case now. I do not make
this recommendation lightly, as I recognize the serious nature of the
charge of espionage and the other offenses. Nonetheless, when balancing
the government's severe difficulties in preparing and presenting its
case, the nature of the case against the accused, and the accused's
lengthy period of pretrial confinement, I believe dismissal is warranted
in the interests of justice.
2. I want to emphasize at
the outset that it is not my intention or desire for this recommendation
to direct blame at any specific government personnel, as there is plenty
to go around. I too have made errors. When this case is over I strongly
recommend that government participants review the case and determine the
lessons learned from the case so the mistakes committed will not be
repeated.
3. It has become apparent to
me over the past five months, however, that the government has not been
able to effectively prosecute this case. I make this statement based on
my participation in the case over that period, understanding, of course,
that the government had this case for eleven months prior to my
involvement.
a. For the past two months
we have been engaged in the second Grunden hearing to determine
what portions of the trial may be closed to the public. This hearing
began on 4 January 2001. The first Grunden hearing occurred on
4 October 2000 and was subsequently overturned by the Navy-Marine
Corps Court of Criminal Appeals. To date, an entire examination of a
single witness has yet to be completed. Five of six of those witnesses
have failed to complete their testimony and the government is
searching for replacements. One of the five declined to participate
further for health reasons. The substitute witness for that witness
was inadvertently provided a critical portion of the prior witness's
testimony and was disqualified, and yet another witness could not
adequately identify the basis for classifying certain information as
required by Grunden. The fourth witness was not able at the
time to testify in the level of detail I believe is necessitated by
Grunden. The fifth witness lacked the necessary technical
expertise to adequately explain her classification decisions. Finally,
the sixth witness has been on extended travel. Thus, the Grunden
hearing portion of the investigation is no farther along than it was
five months ago.
b. The future course of
the Grunden hearing is not a clear one. The government is
having significant difficulties finding replacements for these
witnesses. Additionally, the government is requesting other
evidentiary hearings to determine the relevance of some of the defense
evidence. These hearings take time and will further impede the
progress of the Grunden hearing. Finally, the government is
having difficulty locating what appears to be relevant information
involving risk assessments from analagous cases. This information will
have to be located, reviewed, and, most likely, litigated, before it
can be reviewed as part of the Grunden process. At this point,
the completion of the Grunden hearing appears weeks away. Of
course, the Grunden hearing is merely preliminary to the actual
Article 32 hearing, which will undoubtedly be lengthy given the
proposed witness lists.
c. The difficulties in
conducting the Grunden hearing are, in large part, due to the
government's problems completing a classification review in the case.
The government has apparently undertaken at least three, and perhaps
as many as four, classification reviews of the relevant documents in
this case. The classification review of the documents in a national
security case is required by security regulations and is a
prerequisite to a successful Grunden hearing. The second
review, which was not completed until mid-October 2001, after the
first Grunden hearing, contributed to undermining that hearing
when it was discovered that some key documents had conflicting
classifications. The most recent classification review was undertaken
in mid-January 2001, in the middle of the second Grunden
hearing, after errors in the second classification review were
discovered. Classification discrepancies continue to plague this case
as recent discoveries regarding some videotape evidence revealed that
at least two tapes were under-classified. It is these classification
problems, combined with the difficulties in presenting successful
Grunden witnesses, that has ultimately caused the delay in this
case and rendered futile attempts to set a schedule for the
proceedings.
4. Any recommendation must
include my evaluation of the government's case against the accused.
Although, I have not reviewed all the documents in the case, I have
reviewed many in the course of the Grunden proceedings, to
include the key government exhibits. Although the evidence may surmount
the low threshold of an Article 32 investigation, and that is by no
means certain, I don't believe the government evidence on any of the
charges in this case is strong. On the other hand, the defense evidence
in extenuation and mitigation is significant.
a. The wrongful disclosure
allegations, and the related charges involving dereliction of duty and
wrongful communication, are exemplary in this regard. The alleged
violations occurred while the accused was on duty in a Sensitive
Compartmented Information Facility (SCIF) in the presence of fellow
servicemembers with high level clearances. Each allegation is based on
the recollection of one witness of events that occurred six and four
years ago, respectively. Thus, on the merits, the government has one
witness who will be required to rely on memory for events that
occurred several years ago. With respect to extenuating and mitigating
circumstances, it must be emphasized that the alleged disclosures
occurred in secure areas to personnel that otherwise had high level
clearances, but not access to the specific program in question. Thus,
the threat to national security from these alleged violations was
minimal. Furthermore, one witness did not take the disclosure
seriously, while the other witness considered the information helpful
in performing her job. It appears in both cases that the accused was
disclosing the information to assist others in performing their
duties. These facts constitute strong extenuating and mitigating
evidence.
b. Although the espionage
charge is a very serious one, the government's evidence does not
appear to be significantly stronger. It is based exclusively on a
confession that the accused subsequently contradicted on several
occasions. Additionally, the defense clearly intends to attack the
voluntariness of that confession and it appears that such a claim is
colorable. The defense contention is bolstered by considerations of
the accused's mental state both before and during the weeks-long
period where conditions were placed on his liberty. Furthermore, and
most importantly, the confession lacks strong corroborating evidence.
In order to admit a confession into evidence, the government must
introduce independent evidence, either direct or circumstantial, to
corroborate the essential facts of the confession in order to ensure
the confession is true. Although corroborating evidence need only be
"slight," the evidence I am aware of barely, if at all, reaches that
threshold. The investigation in this case has apparently not revealed
any direct evidence to corroborate the accused's confession. Of
course, direct evidence is not required, but the circumstantial
evidence that the government possesses is not extensive, consisting of
a computer printout of a daily log and an additional admission by the
accused. First, with respect to the latter admission, the Military
Rules of Evidence prohibit the use of other uncorroborated admissions
to supply the independent evidence required for corroboration. Second,
I question whether the mere existence of the daily, log provides
independent evidence of an "essential fact" of the confession, i.e.,
the act of espionage. Frankly, I am not confident a military judge
would find the confession sufficiently corroborated. Finally, even if
the military judge were to find that sufficient corroborating evidence
existed, the members would then determine what weight they would give
to the confession, thus giving the defense another opportunity to
vigorously attack the confession and its corroborating evidence.
Although I recognize that you may refer a charge based on weakly
corroborated, or even an uncorroborated confession because of the
Article 32 investigation's "reasonable belief standard, I do not
believe that would be prudent in a case of this magnitude.
Even if the alleged act
occurred there are several fundamental extenuating and mitigating
facts relevant to this charge. First, by all accounts, the accused
allegedly committed only one act of espionage. Second, the alleged
offense occurred over six years ago and would therefore be barred by
the statute of limitations were it not pleaded as a capital offense.
Third, there is no allegation or even an indication that any money
changed hands. Finally, the accused's difficult personal life and his
solid military record bear consideration.
5. In the meantime, as of
today, the accused has spent 498 days in pretrial confinement. That
total is even higher if the defense's contention that the conditions on
the accused's liberty are found to be tantamount to confinement as they
contend. Of course, as indicated by the Navy-Marine Corps Court of
Criminal Appeals, roughly 300 of those days are attributable to the
defense. Nonetheless, the fact remains that the accused has spent a
considerable amount of time in pretrial confinement. I do not believe
that it is unrealistic to estimate that the time the accused has already
spent in pretrial confinement would be on the low end of any sentence of
confinement he might receive if convicted of some, or all, of the
offenses at a court-martial.
6. Frankly, while I would
like to propose alternative remedies, I cannot recommend any that would
not extend these proceedings further and to no apparent end. Perhaps I
was remiss in not communicating these concerns sooner, but I was, and
remain, very sensitive to my obligation to remain impartial in this
case, and I was concerned that any such communication could have been
viewed as implicit advice to the government on how to proceed with their
case. Thus, at this late date, continuing these proceedings further,
after considering all the facts I have discussed, seems contrary to the
interests of justice from the perspective of both the accused and the
United States Navy.
J.P. WINTHROP
Copy to:
CDR Jowers
Professor Turley
LT Bailey
LT Freedus