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JAMES D. CULP
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30 March 2012 MEMORANDUM FOR Commander, Headquarters I Corps, Rear Provisional, Joint Base Lewis-McChord WA, 98433 SUBJECT: Request for Recusal of Staff Judge Advocate, United States v. SGT John Russell 1. PURPOSE: The defense respectfully requests that COL Kurt A. Didier be recused from serving in the capacity of Staff Judge Advocate for all purposes relating to the case of U.S. v. SGT John Russell. As explained below, recent facts demonstrate that COL Didier does not possess the requisite even temperament or reflective judgment to properly advise the General Court Martial Convening Authority in a court-martial matter as significant as SGT Russells case. 2. FACTS: On 21 February 2012, LTC Darrel Vandeveld submitted a formal request that an independent investigator and a mitigation specialist be appointed to the defense in the case of U.S. v. SGT John Russell (See Enclosures 1 and 2). The request was transmitted via Government e-mail from LTC Vandeveld to your Staff Judge Advocate, COL Kurt A. Didier, for your consideration and action as the General Court-Martial Convening Authority (See Enclosure 1). As of 28 March 2012, no action had been taken concerning this request. 3. On 24 February 2012, LTC Vandeveld submitted a formal request that future requests for consulting experts in the case of U.S. v. SGT John Russell be submitted to you ex parte for your review and action as the General Court-Martial Convening Authority (See Enclosures 3 and 4). The request was transmitted via Government e-mail from LTC Vandeveld to your Staff Judge Advocate, COL Kurt A. Didier, for your consideration and action as the General Court-Martial Convening Authority (See Enclosure 3). As of 28 March 2012, no action had been taken concerning this request. 4. On 28 February 2012, LTC Vandeveld submitted a formal request that SGT John Russell, currently confined at the Lewis-McChord Joint Regional Confinement Facility, receive urgently required medical care (See Enclosures 5 and 6). The request was transmitted via Government e-mail from LTC Vandeveld to your Staff Judge Advocate, COL Kurt A. Didier, for your consideration and action as the General Court-Martial Convening Authority (See Enclosure 5). As of 28 March 2012, no action had been taken concerning this request.

SUBJECT: Request for Recusal of Staff Judge Advocate, United States v. SGT John Russell

5. On 29 February 2012, LTC Vandeveld submitted a formal request that the physical evidence in the case of U.S. v. SGT John Russell, be transferred to Joint Base Lewis McChord to facilitate its inspection and analysis by members of the defense (See Enclosures 6 and 7). The request was transmitted by Government email from LTC Vandeveld to your Staff Judge Advocate, COL Kurt A. Didier, for your consideration and action as the General Court-Martial Convening Authority (See Enclosure 6). As of 28 March 2012, no formal action had been taken concerning this request. 6. At 0932 hours, 28 March 2012, CPT Daniel Mazzone, one of at least three Trial Counsel detailed to prosecute the case of U.S. v. SGT John Russell, contacted the members of the SGT Russells defense team via Government e-mail (See Enclosure 9). In his e-mail, CPT Mazzone related that he had read a news story published by the Associated Press that stated: (1) the defense team in the case of U.S. v. SGT John Russell was gravely concerned for the health and welfare of SGT Russel who is confined at the Joint Base Lewis-McChord Confinement Facility; (2) a formal request for urgent medical care had been forwarded to the Government by the defense on 28 February 2012; and (3) as of 27 March 2012, the Government had failed to act on the Defense request that SGT Russell receive urgent medical care. In his e-mail of 28 March 2012, CPT Mazzone stated The OSJA has not seen a copy of the request sent by your team and I would request a copy so that we can facilitate addressing any issues your team may be having (See Enclosure 9). 7. At 1102 hours, 28 March 2012, LTC Vandeveld replied to CPT Mazzones communication, also via Government e-mail (See Enclosure 10). In his reply e-mail, LTC Vandeveld stated: Again, there seems to be some sort of miscommunication, which amazes me in a case as serious as this. Actually, with respect, it's appalling that these requests have not been acted upon. I speak as an advocate for a seriously mentally ill client charged with the gravest offenses in the UCMJ, and of course intend no disrespect at all. Some explanation seems to be both in order and reasonable to expect, if for no other reason than to prevent similar delays in the future. Again, I want to make it plain that I cast aspersions on no one and approach this in a spirit of collegiality and cooperation, leavened by my role as an advocate. We have literally dozens of witnesses who must be interviewed, a social history that must be compiled, and we've lost over a month at least in the diligent discharge of our duties because no action has been taken on our requests, which are pertinent and should be granted no matter how the case is referred. The charges are simply too serious (See Enclosure 10).

SUBJECT: Request for Recusal of Staff Judge Advocate, United States v. SGT John Russell

8. At approximately 1530 hours, 28 March 2012, COL Kurt A. Didier walked into LTC Vandevelds office, accompanied by Mr. Earnest L. Lockett, a federal civilian employee who manages the automation systems for as part of the G-6, I Corps Headquarters. Notwithstanding that LTC Vandeveld had numerous files open relating to the case of U.S. v. SGT John Russell, COL Didier entered LTC Vandevelds office without knocking or announcing himself. COL Didier, appearing visibly angry, stated: Darrel, you can have the SDC and the RDC in here if you like, but I'm giving you a simple choice: the puzzling language you used in your message this morning must be corrected. I never received your messages. Your choice is this: either you send out an e-mail to the recipients of the message correcting the language and stating that I did not receive the messages, or I will. 9. COL Didier repeated the phrase "or I will" several times, giving it an ominous dimension clearly intended as a threat. LTC Vandeveld, remaining calm, replied by asking, "You're really taking this personally, aren't you?" COL Didier flatly and angrily replied, "Yes, I am. You are implying that I failed to act on submissions in a timely fashion. So you send out the message or I will." 10. At that point LTC Vandeveld replied that he had been trying to determine the exact path that his e-mail messages had taken when they were individually forwarded to COL Didier. LTC Vandeveld then sat down at his computer, pulled up the first e-mail message of 21 February 2012, and right-clicked on COL Didier's abbreviated global name. When the Outlook dialogue box appeared, LTC Vandeveld clicked on "properties," which showed the exact e-mail address associated with the COL Didiers name on the global contact list. The "Properties" entry showed that COL Didier had used his AKO address, kurt.didier@us.army.mil, as the address for messages sent or received by his I Corps Outlook profile, through a process known as "Simple Mail Transfer Protocol," or SMTP. At this point LTC Vandeveld looked at COL Didier and asked, Sir, do you receive your AKO e-mail in your local inbox? COL Didier replied that he did. 11. Mr. Lockett, appearing clearly uncomfortable, simply explained the difference between e-mail transmitted on an MS Exchange Server, which is what I Corps and the Army uses, and which facilitates the direct transmission of messages, and the SMTP, which facilitates the transfer of messages. LTC Vandeveld then suggested that he send a test message using the address he had for COL Didier, to COL Didiers e-mail in the same manner that he had earlier forwarded the defense requests concerning SGT John Russell. LTC Vandeveld subsequently sent COL Didier a test e-mail. Mr. Lockett suggested that LTC Vandeveld send a 2d test email, and LTC Vandeveld complied.

SUBJECT: Request for Recusal of Staff Judge Advocate, United States v. SGT John Russell

12. At this point, COL Didier became extremely agitated and began to raise his voice. The Regional Defense Counsel (RDC), LTC Michael Devine, subsequently entered LTC Vandevelds office. With both LTC Devine and Mr. Lockett present, COL Didier repeated his ultimatum to LTC Vandeveld. 13. In response to COL Didiers final ultimatum, LTC Vandeveld stated that before he would send any message exonerating COL Didier from negligently failing to act upon the several defense requests that had been forwarded to him, that the parties check COL Didiers e-mail inbox to determine whether he had received the test messages that LTC Vandeveld had sent to him in his presence only minutes before. The parties could also have inspected COL Didiers deleted messages folder and used the "recover deleted messages" tool to see if the messages had been consigned there by COL Didier. COL Didier flatly refused this request and repeated his ultimatum while scowling at LTC Vandeveld in a manner clearly meant to intimidate LTC Vandeveld. COL Didier then stormed out of LTC Vandevelds office. 14. ANALYSIS: Unlawful command influence is correctly characterized by military justice experts as the bane of military justice. To this end, the Office of the Trial Defense Service was created as a separate command to insulate military defense counsel from the unlawful command influence that that had been too often employed by commanders and members of the Office of the Staff Judge Advocate against military defense counsel. 15. The actions of COL Didier described above were clearly intended to intimidate a member of SGT Russells defense team, and not just any member. LTC Vandeveld is the lead counsel in the case of U.S. v. SGT John Russell. LTC Vandeveld is a member of the U.S. Army Reserve. At the specific request of SGT John Russell, LTC Vandeveld agreed to become mobilized to active duty, to separate from his wife and children to travel to Ft Lewis-McChord, and to remain at Ft. Lewis-McChord until the case of U.S. v. SGT John Russell is fully litigated and/or resolved. With more than twenty years of federal military service, LTC Vandeveld is one of the few attorneys in the U.S. Army Judge Advocate Generals Corps who is death penalty qualified. Before agreeing to become mobilized and to represent SGT John Russell full-time, LTC Vandeveld was The Public Defender of Eerie County, PA. As a result of his qualifications, his permanent presence at Ft. Lewis-McChord, and his ability to focus the entirety of his professional efforts and attention on the case of U.S. v. SGT John Russell, I voluntarily and sua sponte relinquished my role as lead counsel in the case of U.S. v. SGT John Russell to LTC Vandeveld many months ago. 16. No Staff Judge Advocate in the U.S. Army is in a position, legally or morally, to issue ultimatums to a civilian defense counsel or a military defense counsel assigned to the U.S. Trial Defense Service. The behavior demonstrated by COL Didier towards LTC Vandeveld was unwarranted, unprofessional, and prohibited by 4

SUBJECT: Request for Recusal of Staff Judge Advocate, United States v. SGT John Russell

Army regulation and custom. Even if responsibility for the failure to act on the defense requests had been the result of an error on the part of LTC Vandeveld (which it clearly was not), COL Didiers actions in this matter have far exceeded what can be interpreted as appropriate behavior from a Staff Judge Advocate. Instead of honestly acknowledging his error, the general's lawyer sought to bully the defense. 17. The issue of why the Government failed to act upon the several defense requests forwarded to COL Didier could have been resolved by all parties simply acknowledging there had been a communication error and jointly resolving to work together to avoid such errors in the future. The issue of the failure to respond to or act upon the defense requests in the case of U.S. v. SGT John Russell has now been clearly overshadowed by a far more ominous problem that must be immediately remedied to ensure that SGT John Russell is afforded the fair trial mandated by the U.S. Constitution and the Uniform Code of Military Justice. In other words, the issue is no longer why the defense requests were not acted upon. Rather, the primary issue now is whether COL Didier is qualified to remain the advising Staff Judge Advocate in the case of U.S. v. SGT John Russell. The evidence in this case strongly indicates the answer to this question is no. 18. Through his bullish and unacceptable behavior, COL Didier has demonstrated a marked lack of professional judgment and personal self control: two hallmark qualities expected of every Staff Judge Advocate, regardless of the seriousness of the military justice matters he or she may be advising a General Court Martial Convening Authority about. That said, the case of U.S. v. SGT John Russell is the most serious case one can imagine under the Uniform Code of Military Justice. This case requires the highest degree of professionalism, temperament, and judgment from all parties, prosecution or defense, that come into contact with the case. With the life of a U.S. service member, SGT John Russell, hanging in the balance, there can be no tolerance for poor judgment and/ or intemperate behavior, especially from the senior military lawyer overseeing the case, the generals lawyer. 19. CONCLUSION: For the reasons discussed above, and whether or not COL Didier continues to function as the Staff Judge Advocate in other military justice cases pending at Ft. Lewis-McChord, I respectfully request COL Didier no longer be allowed to act as the advising Staff Judge Advocate in the case of U.S. v. SGT John Russell. Though an apology to LTC Vandeveld is clearly warranted, the pressing issue in this case cannot be resolved with an apology. Indeed, the issue is not whether LTC Vandevelds feelings have been hurt or whether he felt intimidated. Rather the issue that has been presented by COL Didiers unfortunate behavior is whether COL Didier lacks the even temperament and sound judgment required of the Staff Judge Advocate in the case currently pending against SGT John Russell. COL Jessup behavior may be acceptable in the make-believe world of the movies, but it has no place in the very real world of military justice. For this reason, the 5

SUBJECT: Request for Recusal of Staff Judge Advocate, United States v. SGT John Russell

defense requests that COL Didier be recused as the advising Staff Judge Advocate in the case of U.S. v. SGT John Russell. SGT John Russell is facing death because the Army's mental health system failed him. By taking the requested action in this case, you will help prevent the military justice system from failing him too.

//original signed// JAMES D. CULP Civilian Defense Counsel Encls. 1. E-Mail of 21 February 2012, 1638 hours (LTC Vandeveld to COL Didier) 2. 21 February 2012, Request for Investigative and Mitigation Specialists 3. E-mail of 24 February 2012, 1312 hours 4. 24 February 2012, Application for Ex Parte Requests 5. E-Mail of 28 February 2012, 1018 hours 6. 28 February 2012, Application for Access to Medical Care 7. E-mail of 29 February 2012, 1137 hours 8. 29 February 2012, Request for Transfer of Physical Evidence 9. E-mail of 28 March 2012, 0932 hours (CPT Mazzone) 10. E-mail of 28 March 2012, 1102 hours (LTC Vandeveld)