Legal First: Marine Court Martial Uses Live Internet Video

July 31, 2007— -- CAMP PENDLETON, California -- A military justice tribunal convened to probe the killings of 24 civilians in Haditha, Iraq, faced a daunting problem last month: how to fairly take testimony and allow cross-examination of a slew of service members deployed around the globe in the middle of a war. Their solution was the internet.

While the hearing was held at this Marine base about 40 miles north of San Diego, half-a-dozen witnesses, including a two-star general at the Pentagon, a first lieutenant in Kuwait and a Marine on a ship steaming toward Iraq, gave testimony over a live two-way video stream, in an unprecedented trial by video that earned mixed reviews from lawyers.

Many criminal courts already conduct arraignments of incarcerated suspects by video -- with the defendant's waiver of the right to appear. But little else in court proceedings has been done by video conferencing, and in a criminal-justice system resistant to change, adoption has been slow. So the Marines took a page from international courts, which routinely marshal testimony from far-flung places and have found video links nearly indispensable.

"It happens regularly at international tribunals," says Stanford University law professor Allen Weiner, who served on the World Court's Yugoslavia war-crime tribunal. "We took testimony from Bosnia to the Hague for witnesses who felt it was too dangerous to travel."

The Marine Corps used systems from Tandberg, a Norwegian company, and California-based Polycom. The video signals were encrypted for security, then sent out over DoD switches or the internet, depending on the destination. In all, the video testimony in last month's evidentiary hearings unfolded with few glitches, says Marine Master Sgt. Ted Brunnell.

"Occasionally, we run into a satellite that just doesn't have enough power, or congestion on the network, but it usually clears itself quickly," Brunnell says.

During the testimony, the link to Kuwait held steady, while the links to the Pentagon and the personnel carrier were interrupted several times. "Ships are moving targets and it can be tough to locate and lock," Brunnell adds.

The video testimony was praised by some lawyers in the case, where three enlisted men have been charged with murder, and four officers face dereliction of duty and filing false report charges for not investigating the November 2005 deaths of 24 Iraqis.

"We might not have gotten some of the testimony without it," says Charles Gittens, who represents one of the officers. "They would have declared the general unavailable and, let's face it, some of these (active-duty Marine) witnesses may not live to trial."

Other attorneys, including Brian Rooney, who represents Lt. Col. Jeffrey Chessani, say their clients were cheated of a fair hearing by the technology.

"The whole idea is to allow the tryer of fact to observe the person being questioned," Rooney says, citing the constitutional right to confront an accuser. "You pick up a little of the body cues from how their hands are held, from their eyes, from how they sit."

The seriousness of the occasion may be lost on the witness, Rooney says. In the Haditha case, one witness, 1st Lt. Adam Mathes, sprawled out carelessly in a conference-room chair during his testimony from Kuwait. And Maj. Gen. Richard Huck's aides were reading and making faces while the general waited for the video conferences to resume.

"When you have a guy or gal in the (witness) box it creates a sense of seriousness video conferencing doesn't have. You get language you wouldn't get in the courtroom, like a Whiskey Tango Foxtrot (WTF) statement from Mathes," he says. "The only reason we agreed to this was we were told they wouldn't be available otherwise."

Whether video conferencing will make it into civilian courtrooms remains to be seen. While plenty of law firms have video conferencing, the Marine hearing was unusual, according to Peter Nutley, director of global product marketing at Tandberg, which gets about two-thirds of the federal government's video contracts. Courts aren't buying video trials -- yet, he says.

Even if both sides in a legal proceeding agree to video, local court rules will govern whether or not it can happen, says Stanford's Weiner.

"There are important questions that need to be addressed: Is the testimony hearsay? Are there safeguards in place to assure the reliability of evidence? Who was present with the witness during the testimony?" he says, noting that in the war-crimes tribunals, all the lawyers were present with the witness, while the judge was on the other end of the conference.

Who is present off-camera with the witness during testimony is important too, he notes.

"You're limited to seeing what the camera is pointing at, so you don't know if there's someone making faces and gagging gestures -- or holding a gun on the witness -- off-camera," Weiner says. "In a courtroom, a presiding officer or bailiff can shoot you a withering look and restore the formality of the occasion."

Gittens, though, is a fan of video testimony, since last month's hearing resulted in a recommendation of acquittal for his client, Capt. Randy Stone, who'd been accused of dereliction of duty and filing a false report. Another defendant has also gotten an acquittal recommendation, while a third faces further proceedings.

The lawyer says the informality introduced by the video link elicited more forthright testimony. "There was a level of candor there for some witnesses that I don't think we'd see at trial," Gittens says.