UNCLASSIFIEDIIFor MILITARY COMMISSIONS TRIAL … commissions trial judiciary guantanamo bay ae076...

UNCLASS IFIEDIIFor Public Release MILITARY COMMISSIONS TRIAL JUDICIARY

GUANTANAMO BAY AE076

UNITED STATES OF AMERICA MOTION TO COMPEL THE

CONVENING AUTHORITY TO REIMBURSE LEARNED COUNSEL'S

EXPENSES PERTAINING TO HJS USE OF A CIVILIAN PARALEGAL AND

ASSOCIATE IN THE MANNER ARTICLE Ul COURTS DO IN CAPITAL CASES

v.

ABO AL-RAHIM HUSSEIN MUHAMMED ABDU AL-NASHIRI

May 23, 2012

1. Timeliness: This request is filed within the timeframe established by Rule for Military

Commission (R.M.C.) 905 .

2. Relief Requested: In accord with the resources afforded by Article 1II courts, the defense

requests that the Commission order the Convening Authority to reimburse Learned Counsel 's for

his usc of his civilian paralegal and associate lawyer in Indianapolis.

3. Overview: Because the defense is seriously under staffed given the complexity of the

case and because the Office of Chief Defense Counsel (OCDC) does not have qualified

personnel to support learned counsel, counsel has requested permission to utili ze a paralegal

employed by him to perfonn administrative tasks associated with the case at a rate of$40.00 per

hour and an associate lawyer to perform research assignments at an hourly rate of $125.00 per

hour. The Convening Authority dcnied this request. The defense turns now to the Commission

for rel ief.

4. Burden of Proof and Persuasion: The defense bears the burden of persuasion as the

moving party on this motion and the standard is preponderance of the evidence. R.M.C. 905(c).

s. Facts:

Counsel requested from the Convening Authority pennission to be reimbursed for his use

ofa paralegal employed by him to perfonn administrative tasks associated with the case at a rate

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of $40.00 per hour and an associate lawyer to perform research assignments at an hourly rate of

$125.00 per hour. The Convening Authority denied this request. (Attachment A). A similar

request to the Chief Defense Counsel resulted in a response which effectively denied the request.

At present, the OCDC does not have any additional conflict-free, qualified counse l that can work

on a HVD case. Although the OeDe will endorse military paralegals travel to Indianapolis,

these paralegals could not both travel to lndiana and keep up with their duties in Washinb'10n

D.C. (Anachmcnt B & C).

Ms. Spears is a graduate of Indiana University Maurer School of Law. She was a member

of the Indiana Law Journal. She has worked for Mr. Kanunen since her graduation in 2007. She

has assisted Mr. Kammen with three federal capital cases and several federal appeals. She has

been lead counsel on over two dozen state court appeals in the state of Indjana. While it is nOl

anticipated she would deal with classified information she has a TS clearance as a result of her

participation in another detainee case. Her resume is attached. (Attachment D).

Lori Schumacher is a 20-plus-year veteran of the United States Air Force, where she was

assigned and trained as a military paralegal. She worked for OCOC until 2009. She has been

trained in the usc of Concordance, Case Map, T ime Map and Trial Directory software, all of

which will be utilized by the defense. Her resume is attached. (Attachment E).

6. Argument:

A. Mr. Nashiri's staff resources pale in comparison to what the government provided Zacharias Moussaoui in a far less complex case.

The prosecution has repeatedl y referenced the federal capital case of Zacharias Moussaoui in

press briefings as a mode( for what to expect in this casco As noted in the attached affidavit from

Gerald Zerkin, the learned counsel in Moussaoui, the defense team consisted of the following

members, who devoted nearly all of their professional time to the case. (Attachment F).


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1. The Staff of the Federal Defenders Office

1. 4 Attorneys 11. 1 Mitigation specialist

Ill. 1 ParalegaVinvestigator IV. 1 Paralegal v. 1 Investigator

VI. 2 Legal interns

2. Resource Counsel - I Attorney who worked nearly full -time on case for approximately first six months.

3. CJA Counsel- 2 Attorneys, who devoted the majority of their time to the Moussaoui defense, except for a period during one of the interlocutory appeals. One of the CJA counsel employed a paralegal who worked extensively on the Moussaoui case.

4. French Counsel (working with tbe Federal Defender team)

i. I French Attorney (partner) II. I French associate Attorney

111. 1 Legal intern/translator IV. 1 Translator (as needed)

s. German CouDsel- I Allomey who worked with ODe of the CJA lawyers as needed

6. British Counsel - 1 Lawyer who worked with the Federal Defenders Office as needed

7. Contract Paralegal Support - Due to the volume of unclassified discovery (approximately 500,000 pages), approximately 70 paralegals were contracted to perform data entry so that the defense could compile a database to make evidence accessible and searchable.

The Nashiri case is far more complex than MOllssaoui. This death penalty case involves

charges that occurred in multiple countries over ten years ago. It is a national security case

concerning significant amounts of classified information both relating to the investigation of the

events and the prolonged interrogation and detention of the accused by the CIA. The defense

does not have the qualified individuals necessary for thi s unique case.

B. Mr. Nashiri's defense team is woefully understaffed.

Because of the complexity of this case and the ultimate stakes at hand, the relevant

Flied with TJ 23 May 2012

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inquiry on staffing should not simply be on the number of personnel , but on the qualifications of

those who compose of the defense team. The defense is composed of only one counsel who

would qualify under the Federal standard to defend a capital casco See 18 U .S.c. § 3005. The

remaining counsel (3 detailed defense counsel and 1 support counsel) have little to no experience

in death penalty cases and none of them would qualify under their respective state jurisdiction or

the federal stapdard to defend a capital casc.

This case also involves complex and novel areas oflaw that straddle sometimes obscure

areas of criminal law, mil itary law, international humanitarian law and constitutional law. These

bodies oflaw are each complex in their own right and require deep familiarity with diverse

historical and international sources. Yet, for the past seven months, the government has actively

sought to remove the member of the defense team who is most knowledgeable on these issues

and who teaches in these subject areas as an adjunct law professor at Georgetown.

Two out of the three detailed counsel have little to no experience with complex cases and

the assigned support counsel is a second tour officer with minimal trial experience. Yet, this

team of mostly inexperienced counsel is tasked with defending one of the most complex death

penalty cases to ever be tried.

The defense currently has two paralegals detailed to this case. Yet, notwithstanding their

hard work and tremendous dedication to the mission, these paralegals lack the necessary

quali fications for a case of this size and complexity. The management of discovery alone is far

beyond what these paralegals have experienced or are trained to handle in courts-martial. The

paralegals have been on the team for over a year and have received training on Concordance and

Case Map. But prior to arriving to OCDC, neither of them had previous experience with case

preparation and discovery software.


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The management of discovery is itself a monumental task, but it is not the paralegals only

assignment. They must shepherd five attorneys and deal with the numerous administrative tasks

associated with trying this casc. The duties of these two paralegals require them to be in DC or

GTMO. Thus, they will be unable to fulfill their other important duties if they are required to

travel extensively to Indiana.

C. Under tbe ABA Guidelines, adequate support staff is necessary for adequate capital representation.

In its guidelines for the proper conduct of counsel in capital cases, the American Bar

Association notes that the required level of "high quality representation" of capital defendants

"will require at least some contributions by additional lawyers- for example, a specialist to

assist with motions practice and record preservation[.]" IAmerican Bar Association, Guidelines/or

the Appointment and Performance 0/ Defense Counsel in Death Penalty Cases, Guideline 10.4, 31

HOFSTRA L. REV. 913, 999 (2003). Similarly, the Guidelines provide that courts and other

agencies that fund capital defense teams should

provide funding for defender services that maintains parity between the defense and the prosecution with respect to workload, salaries, and resources necessary to provide quality legal representation (including benefits, technology, facilities, legal research, support staff, paralegals, investigators, mitigation specialists, and access to fo rensic services and experts). In doing so, jurisdictions must be mindful that the prosecution has access at no cost to many services fo r which the defense must pay.

See id. Guideline 9.1 emt., at 985 (emphasis added).

Under the ABA Guidelines, adequate research and paralegal assistance are necessary to

ensuring a competent - indeed, a high quality - defense team. Ms. Mary Spears and Ms. Lori

Schumacher's services provide such assistance to augment that provided by OCDC. They are

I The ABA also notes that should a request for such assistance be denied, counsel is obligated to make a full record to preserve the denial for future review. See ABA Guideline 10.4(0).


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both located in Indiana and have ongoing working relationships with learned counsel. Allieamed

counsel requests is that he be able to not have to payout of his own pocket for their assistance,

when in any Article m court, their services would be as reimbursable as translators, taxi drivers

and hotel staff. Being able to utilize their services as any other appointed counsel would be able

to would both take a minor step to establishing some level of parity between the defense and the

Government and help to lower the overall amount of resources that must be expended.

D. Federal courts routinely reimburse attorneys for their costs of support staff.

In federal capital cases it is the rule that leamed counsel is allowed to utilize the

assistance of associate counsel andlor paralegals and be reimbursed at a reduced rate. See 18

U.S.C. § 3005; 7A GUIDE TO J UDICIARY POLi CY § 620. 10. lO(a) (20 11). The federal courts

recognize the efficiency and savings of sucb a policy. Bearing in mind that the Military

Commissions Act requires the Commission to proceed in a manner similar to that adopted by an

Article III court which appoints learned counsel in a capital case, the defense would ask the

commission to consider the relevant portions of tbe GUIDE TO JUDICIARY POLICY.

Fi rst, the standard provision for bill ing fo r associates or partners in CJA cases states:

However, an appointed counsel may claim compensation for services furnished by a partner or associate or, with prior approval by the court, counsel who is not a partner or associate, within the maximum compensation allowed by the CJA.

7A GUIDE TO J UDICIARY POLiCY § 230.53.IO(b)(2011) (emphasis added).

Second, the provisions from Chapter 6, which are only applicable in capital cases state

that " if necessary for adequate representation," morc than two attorneys may be appointed and

that "[w]hile courts should not appoint morc than two attorneys unless exceptional circumstances

and good cause are shown, appointed counsel may, with prior court authorization, use the

services of attorneys who work in association with them, provided that the employment of such


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additional counsel (at a reduced hourly rate) diminishes the total cost ofrepresentation or is

required to meet time limits." Id. §§ 620. IO. IO(b)-(c).

Finally, the guidelines emphasize that there is no "statutory case compensation maximum

fOf appointed counsel . . . in capital cases," {d. § 630. 10.20, and that "presidingjudiciai officers

are urged to compensate counsel at a rate and in an amount sufficient to cover appointed

counsel' s general office overhead and to ensure adequate compensation for representation

provided." Id. § 630.20.

The above demonstrate that in some cases, appointed counsel would not even need a

court's to utilize and then be reimbursed for associate assistance. in others, it is

done upon a showing of good cause. In the experience of learned counsel, and as evidenced by

the attached declaration, Article IJI courts routinely allow reimbursement for associate and

paralegal assistance in federal capital cases. (Attachment G & H).

E. Basic equality of arms and efficiency counsel in favor of aUowing learned counsel to utilize basic support staff.

At bonom, all counsel requests is that this defendant have the same ability to save the

government money and receive effective assistance of counsel as any other federal capital

defendant. The requested resources pale in comparison to those already available to the

prosecution, which has a virtually limitless supply of attorneys and paralegals through the U.S.

Department of Justice and the Department of Defense.

PUlling aside the extraordinary time demands of the case upon counsel, it is irrational for

learned counsel to spend his time at $178.00 per hour, organizing, scanning or copying discovery

or loading documents into a computer in advance of a hearing when that work could be done by

a paralegal at $40 per hour. Simi larly, when general research and writi ng can be done by an

associate familiar with capital defense with little learning curve at a reduced rate, there is a


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significant savings to the government than having learned counsel do it and bill for it personally.

Moreover, because all of the OCDC paralegals are in Washington, DC, it is impractical

and far more expensive for them to travel to Indianapolis to do the work that needs to be done

within Mr. Kammen ' s office. A plane ticket from DC to Indianapolis typically cost's around

$350.00 and the per diem in Indianapolis will be $152.00.2 Thus, a week's time for a D.C.

paralegal would cost over $1,300 per week, exclusive of the costs associated with having the

paralegal out of Washington D.C and away from her other assignments . Moreover, all of the

paralegals who could adequately do the work are fully employed by their obligations in DC.

Simply having the Chief Defense Counsel add another paralegal to the team at this phase in the

litigation would simply be adding someone who lacks the necessary software or experience

working with significant amounts of documents.

With respect to learned counsel ' s use of associates, the "''Titing obligations ror this case

arc huge. Even though the case was only referred in September and arraignment was in

November, the defense has already filed hundreds of pages of pleadings. If it is to provide

adequate capital representation, it will file thousands more prior to trial. Existing counsel cannot

keep up with this obligation in addition to all of the other aspects of the case they arc attempting

to manage.

Additional military counsel from the OCDC do not have the death penalty knowledge or

writing skills that Ms. Spears possesses. Moreover, because of the bureaucratic obligations

imposed prior to hiring additional contractors, there would be too much lag time between any

request for counsel by OCDC and hiring of additional qualified mi litary or civi lian counsel. On

top of all of these difficulties, the government has spent the past seven months attempting to

2 Per diem rates are available at http://www.defensetravel.dod.millpdcgi/pd-ratcslcpdratesx.cgi


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remove onc of the defense team's most prolific writers. Ifhc is removed, the burden on learned

counsel would be even greater.

Accordingly, it is both necessary and appropriate that counsel be allowed to utilize and be

reimbursed for the services of Mary Spears and Lori Schumacher at the rates to $125.00 per hour

and $40.00 per hour respectively. These are basic resources of which no Article III court would

deprive a capital defendant.

7. Oral Argument: Requested

8. Witnesses: None.

9. Conference with Opposing Counsel: The Defense has conferred with the prosecution.

10. List of Attachments:

(A) Request to Convening Authority and Denial (B) E-mail from Chief Defense Counsel (C) Declaration from LCDR Stephen C. Reyes, JAGC, USN CD) Resume of Ms. Mary Spears (E) Resume of Ms. Lori Schumacher (F) Declaration of Mr. Gerald Zirkin (0) Declaration of Mr. Kevin McNally (H) Declaration of Mr. Richard Kamrnen


lsi Richard Karnmen RICHARD KAMMEN DOD Appointed Learned Counsel

lsi Stephen Reyes STEPHEN C. REYES LCDR, JAGC, USN Detailed Defense Counsel

Allison Danels Maj ALLISON C. DANELS, USAF Assistant Detailed Defense Counsel

Michel Paradis MICHEL PARADIS Assistant Detailed Defense Counsel

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CERTIFICATE OF SERVICE

I certify that on the 23 rd day of May I electronically filed the forgoing document with the Clerk of the Court and served the forgoing on all counsel of record on the dale of filing.


Is/ Stephen Reyes STEPHEN C. REYES LCDR, JAGC, USN Detailed Defense Counsel

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ATTACHMENT A

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UNCLASS IFI EDIlFo r Public Release

OFFICE OF THE SECRETARY OF DEFENSE OFFICE OF MILITARY COMMISSIONS

4800 MARK CENTER DRIVE ALEXANDRIA, VA 22350-2100

Convening Authority

April 27, 2012

Richard Kammen, Esq. Gilroy, Kammen, Maryan and Moudy 135 N. Pennsylvania Street, Suite 1175 Indianapclis, IN 46204

Dear Mr. Kammen:

I considered carefully your request of April 18, 2012, for funding to utilize your associate attorney. Ms. Mary Spears, and office paralegal, Ms. Lori Schumacher, on the Nashiri case. For the reasons set ronh below, I cannot grant your request.

You request funding to utilize a civilian attorney and paralegal in your law office on the Nashir; case because you state tbat "the defense is seriously understaffed in several critical capacities." As to your request for funding to utilize your associate attorney, I note that the only civilian counsel I am authorized to fund for the Nashiri case is you, as learned counsel. See R.M.C.506(b). Although Mr. Nashiri has the ri ght to be represented by additional civilian counsel, such representation is to be provided at no expense to the Government. See R.M.C 506(a). Moreover, I am not authorized to detail attorneys to defense cases. Rather, the Chief Defense COWlsel is responsible for such detailing. See Chapter 9-1, Regulation for Trial by Military Commission (20 II Edition).

With regard to your request for funding to utilize your office paralegal, as I pointed out in my April 27, 2011, Memorandum to LCDR Stephen Reyes, USN, which authorized funding for your appointment as learned counsel for Mr. Al Nashiri, the OCDC is responsible for providing you with administrative support, including paralegals, analysts, interpreters, investigators, information technology, and copying services. See April 27, 2012, Convening Authority Memorandum to LCDR Stephen Reyes, USN; see also Chapter 9-1, Regulation for Trial by Military Commission (201 J Edition)("Outside learned counsel shal l have access to OCDC Defense paralegals, interpreters, analysts, investigators, supplies and other resources."). Accordingly, I cannot grant your request for funding to utilize your associate attorney and office paralegal on the Nashiri case, and refer you to the Chief Defense Counsel for further assistance.

cc: LCDR Reyes, JAGC, USN Mr. Mattivi, OMC-P


Convening Authority for Military Commissio

PriIIl6d 011 @ RKj'ded P.per

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GILROY, KAMMEN, MARYAN & MOUDY An Association of Attorneys

Not in Partnership

135 NORTH PENNSYLVANIA STREET SUITE 1175

INDIANAPOLIS. INDIANA 46204 317-236-0400

MEMORANDUM TO TI-IE CONVENING AUTHORITY

RE; REQUEST TO UTILIZE LEARNED COUNSEL'S ASSOCIATE AND PARALEGALS AT RATES DESIGNED TO SAVE THE GOVERNMENT MONEY

I. In accord with the policy. procedures and practices utilized in the United States District

Courts, Richard Kammen, learned counsel, respectfully requests pennission to utilize Ms. Mary Spears, an associate lawyer, for 300 hours at the rate of 125.00 per hour, and Ms. Lori

Schumacher, a paralegal associated with his office, for 300 hours at the ratc 0[$40,00 per hour.

2. Appointment of Ms. Spears and Ms._Schumacher at the time is necessary

As events have unfolded, it has become dear that the defense is seriously understaffed in

several critical capacities. Among these arc paralegal. research and writing assistance. Because

Mr. Kanunen' s office is in Indianapolis, and because it is impractical and not cost effective for

military or OMC personnel to go to Indianapolis to work on routine administrative or research

tasks, it is imperative that the Convening Authority authorize Mr. Kamrnen to utilize his

associate Ms. Mary Spears and/or his paralegal Ms. Lori Schumacher to assist Mr. Kammen with

research, writing, and administrative assignments that are "mission critical." Ms. Spears will

work on research assignments to assist the defense and Ms. Schumacher will work on

administrative aspects of the case within Mr. Kammen's office.

In its Guidelines for the proper conduct of counsel in capital cases, the American Bar

Association notes that the required level of "high quality representation" or capital dcfendants

"will require at least some contributions by additional lawyers-for example, a speeialjst to


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assist with motions practice and record preservationL.]'" American Bar Association, Guidelines

for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.5 emt.

(rev. ed. 2(03) ("ABA Guidelines"]. Simi larly, the Guidelines provide that courts and other

agencies that fund capital defense teams shou ld

provide funding for defender services that maintains parity between the defense and the prosecution with respect to workload, salari es. and resources necessary to provide quaJi ty legal representation (including benefits, technology, facil ities, legal research. support staff, paralegals, investigators, mitigation specialists, and access to forensic services and experts). In doing so, jurisdictions must be mindful that the prosecuti on has access at no cost to many services for which the defense must pay.

See id. § 9. 1 cmt (emphasis added).

The ABA thus clearly contemplates that research and paralegal assistance are necessary

to ensuring a competent- indeed, a high quality-defense team. Ms. Spears and Ms.

Schumacher would provide such assistance to augment that provided by OCDC; the ir

appointment now, at rates reduced from those of learned counsel, would both take a minor step

to establiShing some level of parity between tl1e defense and the Government and help to lower

the overall amount of resources that must be expended in order to do so.

3. Quaiificiltions

Mary Spears Ms. Spears is a graduate of Indiana University Maurer School of Law. She was a member

orthe Indiana Law Journal. She has worked for Mr. Kammen since her gnldualion in 2007. She

has assisted Mr. Kammen with three federal capital cases and severa] federal appeaJs. She has

been lead counscl on over two dozen state coun appeals in the state oflndiana. While it is not

anticipated she would deal with classified information she has a TS clearance as a result of her

participation in another detainee case. Her resume is attached.

Lori Schumacher

Lori Schumacher is a 20-plus-year veteran of the United States Air fo rce. where she was

I The ABA also notes that should a request for such assistance be denied, counsel is obligated to make a full record to preserve the denial for future review. See ABA Guidelines § 10.5 emt.


2

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assigned and trained as a military paralegal. She worked for OMC-D until 2009. She has a

TS/SCI clearance although it is doubtful she would be working on classified matters. She has been trained in the use of Concordance. CaseMap, TimcMap and Trial Director software, all of

which will be utilized by the defense. Her resume is attached.

4. and telephone numbers

Mary Spears Gilroy. Kammen, Maryan and Moudy 135 N. Pennsylvania St. Suite 1175 Indianapolis, In 46204 317-236-0400

Lori Schumacher Gilroy, Kammcn, Maryan and Moudy 135 N. Pennsylvania 81. Suite 1175 Indianapolis, In 46204 317-236-0400

5. Comp'letc statement of why the consultant is necessary

In Federal Capital cases it is the rule, that learned counsel, is a1lowed to uti lize the

assistance of associate counsel wullor paniJegais at a reduced rate. Sec 18 U.S.C. §3005 and

Vol. 7 A Guide to Judiciary Polky, Ch. 6 §620.JO.l0 (a.) The federal courts recognize the

efficiency and savings of such a policy. Putting aside the extra ordinary time demands of the

case upon counsel, there is no reason why learned counsel should spend his time at S 178.00 per

hour, organizing, scanning or copying discovery or loading documents into a computer in

advance ofa hearing when that work could be done by a paralegal at $40 per hour. Similarly,

when some of the general research and writing can be done by an associate at a reduced rate

there is a significant savings to the govenunent.

Counsel requests the same ability to save the government money and at the same time be

in a position to be both better prepared and make better presentations to the court. Counsel

requests here, and will request in other memonmdum, resources comparable to those employed

by the prosecution which has a virtually limitless number of available attorneys through the U.S.

Department of Justice.


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Moreover, because all of the OMC-O paralegals are in Washington DC it is impractical

and far more expensive for them to travel to Indianapolis to do the organization net.:essary for

this case within Mr. Kammcn's office. A plane ticket from DC to Indianapolis would cost

approximately $350.00, a botel $200 per night. Thus, a week 's time fo r a DC paralegal would

cost over 1300 per week exclusive of the cost of having her out of Washington D.C.

The writing obligations for this case are huge. Even tbough the case was referred only in

September and arraign ment was in November, the defense has filed over 50 pleadings. It will

file hundreds if not thousands more prior to trial. Existi ng counsel cannot keep up with this

obligation and new military counsel are unlikely to have the death penalty knowledge Ms. Spears

possesses. Moreover, because of the bureaucratic obligations imposed prior to hiring additional

contractors, there would be too much lag time between any request for counsel by OC·De and

hiring of additional qual ified military or civilian counsel.

Accordingly, it is both necessary and appropriate that counsel be allowed to utilize the

services of Mary Spears and Lori Schumacher at the mtcs to 125.00 per hour and 40,00 per hour

respectively .

6. Estimated Costs

Spears $37,500

Schumacher $12,000

7. Domestic Travel

None Requested

8. Overseas trave l

None Requested

7. Conclusion

Counsel should be allowed to utilize the services of Mary Spears and Lori Schumacher at

the rates of $125.00 per hour and $40.00 per hour respectjvely. If approved, they will submit


4

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billings in accord with prescnt pmct ices. Payment will be made to Mr. Kmnmen's o rricc as is tht:

practice in f ederal Co urt.


5

Very Truly Yours

Richard Kammen Attorney at law

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ATTACHMENT B

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From: To : Cc: Subject: Date:

LCDR Reyes:


Cglwpil lliffrey Col asp OMC Defense Reyes SteRDe" LCDR asp OMC Defense Broyles Bryan Mr asp OMC Qetro"C RE: Request for Paralegal and Attorl'\eY Support Thursday, May 03, 2012 3:49:07 PM

Regarding Paralegal Assistance:

I can and will approve all travel necessary for any of your current paralegals to travel to Indianapolis to conduct case related work. However, we do NOT have any additional paralegals on-hand that can be detailed to your case at this time.

Regarding Lawyer Assistance:

I do not have any additional military or civilian attorneys with capital experience that I can detail to your case. We have just had a new judge advocate arrive that could be detailed to assist you, but she does not have the experience that you have asked for, and at this time, is not fully cleared to work on an HVD case.

Unlike the prosecution, I do not have the resources of the entire Department of Justice to reach into to fill gaps and needs.

If you care to discuss further, please feel free.

Semper Fi,

Colonel J.P. Colwell, U.S. Marine COrps Chief Defense Counsel

-----Original Message-----From : Reyes, Stephen lCDR OSD OMC Defense Sent: Monday, April 3D, 2012 4:19 PM To: Broyles, Bryan Mr OSD OMC Defense Cc: Colwell, Jeffrey Col OSD OMC Defense Subject: Request for Paralegal and Attomey Support

Sir,

As discussed earlier, below is a request from Rick for Specific personnel. Please let me know if you have any questions.

Vir

In light of the Convening Authority's refusal to approval of my efforts to utilize my associate and paralegal to work on non-classified items of research and discovery, I would respectfully request that OCDC detail the following resources to perform the work necessary to be done in Indianapolis in order that I can provide Mr. Mr. AI-Nashiri effective assistance of counsel.


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Paralegal Assistance

At present the defense has three paralegals working full time on the case In the Rosslyn office. They are kept busy on administrative tasks such as wor1<.ing with discovery, arranging travel processing invoices etc. We would request that a forth paralegal, one without an conflicts, be designated to come to Indianapolis for as much as two weeks a month to perform administrative tasks related solely to the al· Nashiri case. Of course the Government would be responsible to pay his or her travel and looging expenses as well as the usual per diem. The assigned paralegal must be very familiar with Concordance, Case Map, Trial Director and Time Map.

lawyer Assistance

While the defense has several lawyers working on the case three of us, Michel Paradis, LCDR Reyes and I do the majority of the writing. I mean no disrespect to MAJ Danels or CAPT. laSalle when I suggest that while they are fine lawyers neither has any capital experience. Mr. Paradis, LDCR Reyes and I are working nearly full time keeping up with writing projects. We cannot keep up with the writing requirements without fatally compromising our efforts in other necessary areas of preparation. Mr. Paradis may be removed from the case over our objections. But even if he is not we cannot fulfill our duties without additional assistance in the area of research and writing.

My associate, Mary Spears was on the Law Review at Indiana University School of law. She has extensive experiences researching and writing on capltal cases. In light of the Convening Authority's decision 1 need detailed military or dvilian counsel of comparable ability to be available to work dosely with me on research issues involving the capital aspects of the AI-Nashiri case. This will involve a commitment of anywhere from 10 to 30 hOUrS per month. No travel to Indianapolis will be required but they must be available nights and/or weekends if necessary.

Stephen C. Reyes LCDR, JAGC, USN Office Of the Chief Defense Counsel,

CAUTION: This message and any attached documents are intended only for the use of the Addressee and may contain information that is PRIVILEGED and CONFIDENTIAl. The email is an attorney communication exempt from DoD monitoring, and may be privileged and confidential. If you are not the intended recipient, you are hereby notified that you may not read, copy, distribute or use this information. If you have received this communication in error, please erase all copies of the message and its attachments and notify us immediately by reply or by telephone 703-588-0407


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ATTACHMENT C

UNCLASSIFIEI'l_Public Release Page 1 of 2



Declaration of Lieutenant Commander Stephen Reyes

I am the detailed military defense counsel in United States v. AI-Nashiri. J am currently stationed in Rosslyn, Virginia. As detailed defense counsel, my duties include the management and supervision of the military paralegal support assigned to this casco There arc currently two paralegals assigned, a Petty Officer First Class and a Technical Sergeant. These two paralegals are also based out of Rosslyn. Their duties include, among other things, creation and maintenance of a discovery database, review of discovery. domestic and foreign travel arrangements, payment of experts, linguist assignments, couriering classified information, and numerous administrative tasks. As part of their duties, both paralegals have received training in Concordance and Case Map and have some working experience with these case preparation software.

Further, given the complexity of this case, my two paralegals are fully employed in Rosslyn. And due to the nature of their tasks and the fact that they must handle classified information as part of this task, it is necessary that these two paralegals work out of the office in Ross lyn. Thus, assigning them to Indianapolis to assist Mr. Kammen would prevent them from fulfil ling their tasks here in Rosslyn.

Lastly. one of the assigned paralegals is scheduled to go to a six week professional course from August to September. This course is required for advancement and promotion.

1 declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.


TEPHEN C. REYES LCDR, JAGC, USN

Dated 21 May 2012

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ATTACHMENT D

UNCLASSIFIEI'l_Public Release Page 1 of 2



EXPERIENCE

Gilroy Karnmen Maryan & Moudy, Indianapolis, Indiana Associate Attorney, August 2007 - present

• Represent defendants in federal capital trials (including U.S. v. O'Reilly, Cause No. 05-CR-80025, E.D. Mich., in which defendant received a life sentence, and U.S. v. Young, Cause No. 3:98-00038, M.D. Tenn., in which defendant received a sentence of 40 years in prison) . Assist in capital jury selection, drafting opening statements and dosing arguments, and planning direct- and cross-examinations.

• Draft state and federal appellate briefs on non-capital criminal cases in all stages of appeal, including petitioning for certiorari. Conduct oral arguments in stale and federal courts of appeal.

• Represent state criminal defendants on cases ranging from misdemeanor drug possession to murder.

• Represented Afghan citizen detained in Guantanamo Bay, Cuba. Monitored case law and federal legislation pertaining to Guantanamo, and researched habeas corpus and military commission law.

Marion County Public Defender Agency, Indianapolis, Indiana Contract Appellate Attorney (Part-time), May 2009 - present

• Represent indigent defendants at the appellate level. Conduct, and assist other attorneys in preparing for, oral arguments.

Indiana University School of Law - Indianapolis, Indianapolis, Indiana Substitute jor/ksistant fa Prof RidlUrd Kammen, Fall, 2008 - 2011

• Teach 20-member course on death penalty law and advocacy on substitute basis. • Assist in drafting and grading writing assignments and fina l eXilms.

Monroe County Circuit Court, Bloomington, Indiana LAw Clerk, The Honorable Frances G. Hill, June - September 2007

Prepared bench memoranda on issues including family law and jurisdiction.

EDUCATION

Indiana University Maurer School of Law, Bloomington, Indiana J.D., 2007

• Recipient, Merit SchOlarship (2004 - 2007) • Articles Editor, lndiatta LAw Journal • Brief Writing Honors, Sherman Minton Moot Court COJ.:npetition

University of Notre Dame, South Bend, Indiana B.A. (English I Philosophy), 2004 (magna cum laude)

BAR ADMISSIONS

State of Indiana (2007); United States Supreme Court (2011); United States Courts of Appeal for the Sixth and Seventh Circuits (2008); United States District Courts for the Northern and Southern Districts of Indiana (2007) .


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ATT ACHMENT E

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HIGHLIGHTS

Self-disciplined; problem solver; excels under pressure; professional; highly motivated and organized; quick learner; team player; detail oriented; management; troubleshooting; over 27 years of various experiences; resourceful in obtaining information and conducting research .

PROFESSIONAL EXPERIENCE

SSBI: 17 Nov 2008; DCID 6/4: 02 Dec 2008 Top Secret security clearance with SCI eligibility

Gilroy, Kammen, Maryan & Moudy Paralegal

Paralegal for five (5) attorneys; performs legal research; prepares appellate appendixes; prepares and organizes case files; instrumental in the case file organization, research, expert witness communications , review of evidence & prepares spreadsheets, charts for attorney and expert witnesses in a high profile triple murder case; knowledgeable in technology advances and uses for ease of case preparation; use of litigation software in case management, investigation and discovery; instrumental in the use of Adobe Professional for the redaction in documents for filing; maintains effective communications with trial courts and clerks.

Undisclosed Location in Southwest Asia United States Air Force, Paralegal

Law Office Superintendent 1110 - 4/10

Principal advisor to the Staff Judge Advocate on the day to day operation of the legal office, 7 days a week; ana lyzed and submitted report data back to higher headquarters on workload and manpower; instrumental in ensuring office maintained licenses for Adobe Professional to utilize in the combining of files in the redaction of discovery in military justice actions, court transcripts , pleadings, documents for FOIAIPA requests , and foreign contracts ; resolved technical problems through analyzing and interpreting regulations, directives, policies and procedures; acted as Chief, l egal Assistance in ensuring clients received the appropriate legal advice from attorneys, preparation of aU legal documentation from Powers of Attorney, Wills to speCific documents for return to CONUS.

Office of the Secretary of Defense (050) Office of Military Commissions (OMC) United States Air Force, Paralegal

Asst Chief Defense Paralegal Manager 7/08 - 9/09

Assisted with supervision of 25 joint service paralegals. This included performance duties, evaluations, awards, counseling and professional development; worked daily with NIPR, SIPR, JWICS and the P2P (Point to Point); worked closely with all branches of OMC and Joint Task Force - Guantanamo Bay, Cuba (JTF-GTMO) - Convening Authority , Trial Judiciary, Prosecution, and OMC Support Element; managed Defense staff Sensitive Compartmented Information Facility (SCIF), defense faci lity; security, safeguarding of classified documentation; performed and provided paralegal expertise to detailed trial attorneys for three detainees; compiled and composed appropriate responses to correspondence and requests pertaining to assigned cases ;

Filed with T J 23 May 2012 UNCLASSIFIe!l!lflli>er "ublic Release

Page20fS Appellate Ellhibit 076 (Al-Nashiri) of 42


established policy and guidance for Defense paralegals for obtaining detainee visit requests in GTMO; creation of travel orders and country clearances for defense team worldwide travels; analyzed evidence for trial teams and utilized redaction procedures when needed for discovery requests, providing documents, and requests for release of information; composed office memoranda in accordance with established guidelines, in preparation for trial; reviewed and interpreted regulations, directives, policies and procedures from various 000 entities, governmental agencies to include information from the intelligence community; couriered classified documents up to TS/SCI to and from Guantanamo Bay, Cuba.


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Appellate Exhibit 076 (Al-Nashiri) of 42


Best Buy

Retail Sales - Home Theater, Appliances, PCHO Senior, Wireless Senior Best Buy Mobile Manager

5/05 - Present

This position is currently held under the Uniform Services Employment and Reemployment Rights Act (USERRA) for my activation to active duty; meet customer needs based on lifestyle, trend analysis and assessments; customer service through establishing trust, versus a business approach; sought out by senior leadership to assist internal departments and external stores to assist with better customer care/service; analyze feedback and recommend to organizational leadership changes in efficiencies and improvements to customer service. These recommendations also include resourcing and personnel management; responsible for development, implementation and revision of company policy

Legal Video Services, Inc. 7104- 5105

legal Videographer

Directed video and audio of legal depositions, independent medical examinations, and accident scenes for trial use; maintained videographer log of events including location and time on tape; performed video and audio edits of product(s) for clients; dubs appropriate recordings to DVD or CD based upon client needs; worked closely with attorneys before shoot, during and afterwards; ensured video recording were appropriately protected in order to protect attorney/client privilege materials

Best Buy 3103 - 11104

Loss Prevention Specialist

Responsible for protection of company assets from internal or external theft; performed trend analysis and assessments of theft and safety issues and provided briefings to employees for situational awareness; managed multiple, closed-circuit television systems; greeted customers in an enthu'siastic and friendly manner to serve as a physical and psychological deterrent, mitigating the loss of property; as an additiona l duty, assisted customers with selecting the best product to fit their lifestyle and needs

Indiana Supreme Court 06190 - 02103

State Court Administration, Support Staff

Single-handedly orchestrated daily operations for trial courts, prosecutors, probation departments, other branches of goverriment and residents of Indiana; performed ten-digit data entry of quarterly caseload reports from over 400 trial courts and 145 probation departments; managed incoming/outgoing privacy act correspondence; prepared memorandum for executive signature, and maintained databases for administrative, judicial and probationary reports; managed electronic databases used for trend and statistical analysis; performed diverse administrative and clerical procedures for Supreme Court Justices, Directors, Trial Court Management and Trial Court Services; maintained thousands of archival, attorney discipline case files; prepared charts, graphs and text documents for State of Indiana judicial annual reports distributed throughout the United States and utilized for judicial state senate actions.

United States Air Force Reserve 03190 - 09110

Paralegal Manager, law Office Superintendent

Principal, senior enlisted advisor to the Staff Judge Advocate on aU law office activities and paralegal matters; Established performance standards and procedures to ensure effective utilization of enlisted reserve paralegals; monitored professional and personal development of all Reserve paralegals with HQ AETC;


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responsible for augmenting the active duty Command Paralegal Manager during absence; provided on-target senior enlisted perspective to senior Air Force leadership; analyzed and interpreted office policies, procedures, and management operations; prepared and finalized performance reports, awards and recognition certificates; recruited and interviewed candidates for administrative and paralegal positions; reviewed briefings, facility arrangements, military and civilian position descriptions and office equipment requirements; responsible for the management of the office budget and appropriate expenditure of funds; reviewed weekly metrics of Military Justice, Claims and Civil Law divisions to determine compliance with established Department of Defense and Air Force quality and time standards; assisted with the planning, organization and equipping the law office to which assigned; instrumental in assisting the active duty Law Office Superintendent's with interviewing qualified candidates for the paralegal career field.

United States Air Force 11/82 - 03/90

Paralegal : Military Justice, Claims, Defense Paralegal

Maintained trial docket for all court-martial actions and served as liaison for all commanders on military justice actions; reviewed and coordinated evidence with Chief of Military Justice and drafted charges/specifications for courts-martial and non-judicial punishment actions; investigated, adjudicated and processed personal property, carrier recovery, accident, personal injury, wrongful death and other miscellaneous claims for and against the United States; responsible for the processing and investigation of all third party liability claims; prepared litigation correspondence for Headquarters Air Force and US Attorney Offices, briefs of law, memorandum opinions for attorneys and performed legal research for highly sensitive claims and military justice action; maintained office publications, law library and office documentation files; responsible for preparing legal documentabon for military members and family members In need oT service; responsible Tor the overall management and supervision of subordinates; assigned, prioritized duties to division paralegals; conducted inspection, investigations, interviewed witnesses and processed claims for and against the United States; prepared and maintained legal documentation for military justice actions, claims and litigation files .

EDUCATION & PROFESSIONAL DEVELOPMENT

Concordance and Courtroom 21 Training (CaseMap and Trial Director); Adobe Professional Training; 2007 Best Buy Supervisors BLAST and Wireless Tech Tour; Air Force Senior Noncommissioned Officer's Academy Course; Senior Reserve Forces Paralegal Course; Law Office Manager's Course; Resource Management; Air Force Leadership & Supervisory Course; Supervisor's Safety Course; Claims & Tort litigation Course; Air Force Administrative Management Course; 3 courses away from award of Associates of Applied Science in Paralegal Studies

AWARDS

2005 Air Force Outstanding Reserve Paralegal of the Year; Joint Service Commendation Medal; 3 Meritorious Service Medals; 2 Air Force Commendation Medals; 4 Air Force Achievement Medals; 2 Air Force Expeditionary Medals and numerous letters of commendation/appreciation.

TECHNOLOGIES

Microsoft Office Suites; WordPerfect; various Windows operating systems; Air Force suspense systems; Microsoft Outlook; Internet Explorer; Adobe Professional; Lexis-Nexis and Westlaw; Lexis-Nexis court systems of Concordance, CaseMap, and Trial Director; various photo and audio editing software programs.


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ATTACHMENT F

Release Page 1 of 4



Declaration of Gerald Zerkin

My name is Gerald Zerkin and I make this declaration subject to the pains and

penalties of perjury.

1. I am one of several Capital Resource Counsel who are assigned to provide

direct representation in Federal capital prosecution and assist counsel in

Federal Capital prosecutions.

2. My office is in Richmond Virginia in the offices of the Federal Defender for

the Eastern District of Virginia, where I was employed as Senior Litigator

from October, 2001 until I assumed my position as Resource Counsel in 2008.

Although the location of my office remains the same, as of October 2011, I

have been associated with the Office of the Federal Public Defender for the

District of Oregon.

3. I was "learned counsel" for the trial team that acted as counsel for Zacharias

Moussaoui, who was charged with being a member of the 9/11 conspiracy,

and against whom the Un ited States Government sought the death penalty.

4. Because the case took over four years from indictment to trial and included

three interlocutory appeals, the identities of members of the team changed

slightly over time and the work a majority of the team members

was not involved in the case during the period of two of those appeals;

however, the numbers of personnel participating in the defense on a

consistent basis was as follows :

From the Staff of the Federal Defenders Office

4 lawyers


Release Appellate Exhibit 076 (AI·Nashiri) Page 2 of 4 of 42


1 mitigation specialist

1 paralegal/investigator

1 paralegal

Ilnvestigator

2 Legal Interns to do research and perform other appropriate tasks.

All of the above devoted all or the greatest portion of their time to the Moussaoui defense.

Resource Counsel

1 Resource Counsel who worked ncarly fulHimc on case for approximately first six months.

CJA Counsel

There were 2 CJA counsel. Both devoted the majority of their time to the Moussaoui defense, except for a period during one of the interlocutory appeals.

One ofthe CJA counsel employed a paralegal who worked extensively on the Moussaoui case.

Cpunsel in France (working with the Federal Defender team)

1 French lawyer (partner)

1 French associate French lawyer

1 Legal Intern/translator

1 translator (as needed)

Counsel in Germany

i Lawyer who worked with one of the CJA lawyers as needed

Couosel in Great Britain

1 Lawyer who worked with one of the FDO lawyers as needed

Addjtional paralegal support

Additionally due to the volume of unclassified discovery (approximately 500,000

pages) approximately 70 paralegals were employed by a contractor to perform data

entry so that we could create a database making evidence accessible and searchable.


Release Appellate Exhibit 076 (Al-Nashiri) Page 3 of 4 of 42


I declare under penalty that the foregoing is true and correct.

Dated: May B, 2012

Filed wilh TJ 23 May 2012

Respectfully Submitted

_s/-::--:-:-___ _ Gerald Zerkln

Release Appellate Exhibit 076 (AI-Nashlri) Page 4 of 4 of 42



ATTACHMENT G

UNCLASSIFIB®I""'" Public Release Page 1 of6



DECLARATION OF KEVIN McNALLY REGARDING ASSOCIATE AND PARALEGAL BILLING

1. I currently serve as the Director of the Federal Death Penalty Resource

Counsel Project, assisting court-appointed and defender attorneys charged with the

defense of capital cases in the federal courts, I have served as Resource Counsel

since the inception of the Resource Counsel Project in January, 1992. The Project is

funded and administered under the Criminal Justice Act by the Office of Defender

Services of the Administrative Office of the United States Courts,

2. My responsibilities as federal resource counsel include the monitoring of

all federal capital prosecutions throughout the United States in order to assist in the

delivery of adequate defense services to indigent capital defendants in such cases,

This effort includes the collection of data on the initiation and prosecution offedera l

capital cases,l

'The work olthe Federal Death Penalty Resource Counsel Project is described in a report prepared by the Subcommittee on Federal Death Penalty Cases, Committee on DefenderServices,Judicial Conferenceolthe United States, FEDERAL DEATH PENALTY CASES: RECOMMENDATIONS CONCERNING THE COST AND QUALITY OF DEFENSE REPRESEN T ATION (May, 1998), at 28-30, www.uscourts.gov/dpenalty/1COVER.htm. The Spencer Subcommittee "report" urges the judiciary and counselto maximize the benefits of the Federal Death Penalty Resource Counsel Project "" which has become essential to the delivery of high quality, cost-effective representation in death penalty cases ,.,," Id. at 50. A recent update to the Report stated: "Many judges and defense counsel spoke with appreciation and admiration about the work of Resource Counsel. Judges emphasized their assistance in recruiting and recommending counsel for


Public Release Appellate Exhibil 076 (AI-Nashlri) Page 2 of 6 of 42


3. In order to carry out the duties entrusted to me, I maintain a

comprehensive list of federal death penalty prosecutions and information about

these cases. I accomplish this by internet news searches, by reviewing dockets and

by downloading and obtaining indictments, pleadings of substance, notices of intent

to seek or not seek the death penalty, and by telephonic or in-person interviews with

defense counselor consultation with chambers. This information is regularly updated

and is checked for accuracy by consulting with defense counsel. The Project's

information regard ing federal capital prosecutions has been relied upon by the

Administrative Office of the United States Courts, by the Federal Judicial Center and

by various federal district courts.

4. Within the group of cases in which the Department of Justice has

authorized the government to seek the death penalty, we have collected data

concerning various defense team members and court approved billing practices.

5. As a cost savings device, recommended by the Spencer Sub-Committee,

Itlearned/l counsel appOinted in federal capital cases routinely are permitted to use

appOintments and their availability to consult on matters relating to the defense, including case budgeting. Defense counsel found their knowledge, national perspective, and case-specific assistance invaluable," http://www .uscou rts.gov /Federa ICourts/ AppointmentOfCounsel/Pu bl ications/Up dateFederalDeathPenaltyCases.aspx


2

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their associates and/or paralegals, to the extentthat they are available, to assist with

certain tasks. This saves tax dollars, as "learned" counsel usually bill for associate

time at a lower rate. 2 Use of paralegals saves even more. 3 See Guidelines for

Administration of the CriminalJusticeAct, Volume VII, Guide to Judiciary Policies and

Procedures (CJA Guidelines), ' 2.11{A) which permits an appointed counsel to claim

compensation for services furnished by "a partner or associate" jf the Court

approves. http://fpd.home.texas,net/ciagu idelines/index.html The Spencer report

'See, e.g., United States v. Cornell Win!rei McClure (D. MD CR No. 01-CR-367-ALL) (associate counsel paid at$90.00 per hour); UnitedStatesv. Wilfredo Perez (D. CT CR No. 02-CR-7-ALL) (associate counsel paid $100.00 per hour) and United States v. Donnell Young (M.D. TN CR No. 3:98-00038 ) (associate research counsel paid $90.00 per hou r); United States v. Milton Jones (E.D. MI CR No. 01-80S71 ) (associate counsel permitted to bill).

' Paralegals have been permitted to bill under the Criminal Justice Act in numerous cases including: United States v. Anthony Battle (N.D. GA No. 1:95 CR528) (appeal); United States v. Carlos David Cora (W.D. VA No. 06 CR 00001); United States v. James Leon Guerrero and Joseph Cabrerar Sablan (E.D. CA No. 08 CR 00259); United States v. Michael Jacques (D .. VT No. 2:08-CR-117); United States v. Joel Cacace (E.D. NY No. 1:08-CR-00240-NG); United States v. Chester John Riblet{C.D. CA No. 5:08-CM-00021-UA); United States v. John Travis Millner{E.D. KY No. 7:09-MJ-25-EBA); United States v. Ronald Dick (M .D. FL); United States v. Silvestre Rivera (D. CO No. 1:10-CR-00164-LTB); United States v. Gary Watland (D. CO No. 1:11-CR-00038-JLK ); United States v. Chastain Montgomery (W.D. TN No. CR 11-20044); United States v. Jorge Avila Torrez (E.D. VA No. 1:11-CR-115); United States v. Reginald Mitchell{S.D. FL No. 1:11-MJ-03119-STB); United States v. Jared Lee Loughner {D. AZ No. CR 11-0187-TUC-LAB); UnitedStatesv. SamuelStone (E.D. CA No.1:12-CR-00072-AWI-DLB); United States v. Ahmed Muse Salad (E.D. VA No. 2:11CR34) and United States v. Frederick Ashley (C.D. CAl.


3

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states:

The defense team in federal capital cases may indude paralegals, investigators and less experienced lawyers, generally billing at an hourly rate substantially below that of lead counsel. The additional lawyers who work on the case generally are not formally appointed, but rather are authorized by the court to work on limited and discrete tasks. When these assistant counsel are used effectively, total costs of attorney compensation are reduced, because the average hourly rate is reduced . For example, one appointed lawyer, who was authorized by the court to receive the statutory maximum of $125 per hour, hired a less experienced lawyer at $45 per hour to listen to thousands of hours of wiretap tapes and identify the important parts, thus achieving substantial savings. (See Recommendation 3, "Appointment of More than Two Lawyers," in Part II of this report.) [Emphasis added). The Commentary to Recommendation 3 states: {C]ourts are encouraged to permit appOinted counsel to employ additional attorneys to perform more limited services where to do so would be cost-effective or otherwise enhance the effective use of resources. For example, in many federal death penalty cases the prosecution provides to defense counsel an extensive amount of discovery material which must be reviewed for relevance and organized for use by the defense. Providing legal assistance to appointed counsel at a lower hourly rate may prove economical or it may be a necessity in light of court deadlines. This is consistent with existing Judicial Conference policy with respect to all Criminal JustiCe Act representations (see OA Guideline 2.11A), and is emphasized here because of its cost containment potential in capital litigation.

See http://www.uscourts.gov/dpenalty/4REPORT.htm#a031. [Emphasis added.)

6. For example, the undersigned has been permitted to bill for associate time

in several federal capital cases: United States v. Rollack (S.D. NY CR No. 54 97 CR

1293); United States v. Stewart (W.D. KY CR No. 4:99-CR-ll-M) and United States v.


4

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Kee (S.D. NY CR No. S198-CR-778).

I declare under the penalty of perjury under the laws of the United States of

American, 28 U.S.C. §1746, thatthe forego ing is true and correct. Executed this 11'h

day of May, 2012.

Sworn to and subscribed before me th is 11th day of May, 2012

Notary Public, State at Large

Kevin McNally Attorney at Law

My Commission Expires _ 3.=....:'C.-d_'S--'\dD_· _ 1_3 __


5

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ATTACHMENTH

UNCLASSIFIEI'l_f'ublic Release Page 1 of 3



DECLARATION OF RICHARD KAMMEN REGARDING ASSOCIATE AND PARALEGAL

BILLING

1. I have been appointed by the Department of Defense as Learned Counsel in

this case.

2. That I have extensive experience as learned counsel in Federal capital cases

having been appointed as learned counsel in approximately 35 Federal

capital cases.

3. That many of the Capital cases in which I have been appointed have not been

authorized for prosecution as capital cases by the Attorney General of the

United States.

4. That even in those cases not authorized the Federal court that has appointed

me has authorized me to utilize either paralegal or associate assistance, or

both as was necessary.

5. That in those cases that were authorized for prosecution as capital cases the

Court that appointed my as always allowed me to use, and bill for paralegal

or associate assistance as necessary.

6. For example in the last three cases in which I have been appointed, U.S. v.

Young, (MD. Tennessee), U.S. v. O'Reilly (ED Mich.) and US. V. Kelly (WD of

KY) the court has allowed me to use, and bill for paralegal and associates as

necessary.

7. That this allows me to focus on my duties as learned counsel and provides

better quality representation to the accused, and the court, at a lower cost.

S. That to my memory, in no case in which I have been appointed as learned

counsel has the court refused a request to utilize and bill for paralegal or

associate assistance.

9. That as I have always been appointed as learned counsel in Federal Court in

another state, it has always been the case that I will have to manage at least a

portion of the file from within my office. Moreover, it is typical that as

learned counsell have significant responsibility to determine what motions

should be filed, especially those relating to death penalty issues" the timing


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Appellate Exhibit 076 (Al -Nashiri) of 42


of the mot ions and insuring that the content of the motions is current with

the very fluid nature of capitailitigation, in which there are often new,

relevant authorities on a very frequent basis.

10. It is for that even when I have been working with the relevant office of the

Federal Public Defender or local counsel and that office has provided

paralegal or research support, I have been allowed to utilize and bill for

paralegal and/or associate support.

11. For example, in United States v. Timothy O'Reilly, local counsel had both an

associate working on the case and an assistant who provided the equivalent

of paralegal support. That assistance notwithstanding, I was allowed to

utilize and bill for an associate, a paralegal and a paid intern. Both the

associate and intern were allowed to travel to Detroit for the three months of

the trial in order to assist in the trial and penalty phase.

I declare under the penalty of perjury under the law of the United States of America,

28 U.S.C 1746 that the forgoing is true.


--.,."", ......... Rick Kammen

Richard Kammen

UNCLASSIFIEI'l_f'ubli c Release Page 3 of 3

Appettate Exhibit 076 (At·Nashiri) of 42

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