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