The following was read into the Court Record by Judge Lind at the 6 June 2012 Article 39(a) Session:
On 11 May 2012, Appellate Exhibit 86 the Government moves the Court to reconsider its 23 March 2012 ruling requiring the Government by 18 May 2012 to:
1.) Disclose to the defense the any unclassified information from the Department of State Damage Assessment that is favorable the Accused in the guilt or punishment.
2.) Disclose to the Court any additional unclassified information from the Department of State Damage Assessment not disclosed to the defense for in camera review.
3.) Identify what classified information in the Department of State Damage Assessment is favorable to the defense in the guilt and punishment.
4.) Disclose to the Court all classified information that is part of the Department of Defense Damage Assessment for in camera review in accordance with R.C.M. 701(g)(2). Or at the request of the Government in camera review for limited disclosure under MRE 505(g)(2). The Government moves the Court to rule the State Department Damage Assessment is a "draft" and therefore any information contained in it is not discoverable because it is speculative in nature. The defense opposes. The Government has provided the Court and the defense counsel with a classified letter from the Department of State with background information explaining the draft nature of the DoS Damage Assessment. The Government has also provided the Court with a classified DoS Damage Assessment for in camera review on this motion. The Court has examined both the classified letter and the classified Department of State Damage Assessment and finds that Department of State's Damage Assessment is a draft Damage Assessment. The fact that it is a draft does not make the draft speculative or not discoverable under R.C.M. 701.
The Government's Motion to Reconsider the Court's ruling of 23 March 2012 with respect to Department of State Damage Assessment is granted, adding reconsidered of 23 March 2012. The Government Motion to find the Department of State Damage Assessment is not discoverable is denied.
The Government will comply with the 23 March 2012 ruling for the Court.