The following Court ruling was read into the June 6, 2012 Article 39(a) Session Court record by Judge Lind:
The defense moves the Court to order all R.C.M. [Rules for Courts-Martial] 802 conferences be recorded and transcribed for the record. The Government opposes. After considering the pleadings that have been presented, and argument of counsel, the Court finds and concludes the following.
1.) The trial schedule developed by the Court and the parties provides for Article 39(a) Sessions to be held approximately every 5 to 6 weeks. To date their have been Article 39(a) Sessions held on 23 February, 15 and 16 March, 24 through 26 April, and the current session 4 [sic] to 6 June 2012.
2.) R.C.M. [Rules for Courts-Martial] 802 provides that after referral the military judge may upon request of either party or sua sponte, which means by myself, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial. Conferences need not be made part of the record, but matters agreed upon at the conference shall be included at the record orally or in writing. Failure of a party to object at trial or failure to comply with R.C.M. [Rules for Courts-Martial] 802 waives this requirement. No party may be prevented from any argument, objection, or motion at trial. The discussion to the rules states that the purpose of R.C.M. [Rules for Courts-Martial] 802 conferences is to inform the military judge of anticipate issues and to expeditiously resolve matters in which the parties can agree, and not to litigate or decide contested issues.
3.) The Court has been holding R.C.M. [Rules for Courts-Martial] 802 conferences with counsel during and following the Article 39(a) Sessions and by telephone on 8 February 2012, 28 March 2012, and 30 May 2012. Each of these conferences has been synopsized on the record and the Court has invited the parties to add details to the Court synopsis.
4.) Prior to the current motion dated 2 June 2012 the defense has not objected to conducting R.C.M. [Rules for Courts-Martial] 802 conferences.
5.) R.C.M. [Rules for Courts-Martial] 802 are not required that such conferences be recorded or transcribed. The Court will continue to continue to hold such conferences to address administrative, logistics, and scheduling issues. If either party objects to discussion of an issue in an R.C.M. [Rules for Courts-Martial] 802 conference, the conference will be terminated and the issue will be addressed at the next Article 39(a) Session.
6.) The Court notes that the parties have raised substantive issues in the middle of the Article 39(a) scheduling periods that if not addressed expeditiously will delay the trial. Therefore, the Court in conjunction with the Parties will build in an additional Article 39(a) Session into the Court calendar. I anticipate it will be about a one day session midway between each scheduled Article 39(a) Session to address any such issues that arise. When additional substantive issues arise that require expeditious resolution the Court will schedule additional ad hoc Article 39(a) Sessions as necessary.
1.) The defense motion record and transcribe R.C.M. [Rules for Courts-Martial] 802 conferences is denied.
2.) R.C.M. [Rules for Courts-Martial] 802 conferences will not be held over the objection of a party.
3.) The Court will schedule an additional Article 39(a) Session in between the currently scheduled sessions to address on the record any additional issues that arise between our scheduled sessions.