CHEMICAL WEAPONS WORKING GROUP
PO Box 467 Berea KY 40403
859-986-7565 859-986-2695 (F)
<www.cwwg.org>
for more information:
Craig Williams 859-302-1103
for immediate release: Thursday,
August 14, 2003
DID ARMY LAWYER’S THREAT INFLUENCE EMPLOYEE'S TESTIMONY?
In Oregon incinerator case Army monitoring expert
declines to offer opinion testimony under "threat of reprisals"
In what one courtroom spectator labeled
a "blatant example of government misconduct," an Army employee, called as
a witness by citizens groups trying to stop the Army's incinerator in Oregon,
declined to offer opinion testimony, after an attorney for the Army stated
the employee would be doing so "at his own peril."
The employee, who works in the monitoring division
of an Army weapons incinerator in Utah, had already given his fact testimony
when this courtroom incident occurred. Before Oregon Circuit Court
Judge Michael H. Marcus could decide whether or not to overrule an Army regulation
that forbids Army employees from offering opinion testimony against the Army,
the Department of Justice (DOJ) attorney representing the Army said further,
"Why would he want to put his head on the block for testifying in this case...?"
At that point, Mick Harrison, attorney for the plaintiff
groups who are urging the revocation of the incineration permit and the use
of safer non-incineration technologies, immediately objected saying, "Excuse
me Your Honor, I want to know what putting his head on the block means.
It sounds like the witness is being intimidated."
Judge Marcus said subsequently, "Why shouldn't anyone
charged with the determination of fact and due process of law be outraged
at such a suggestion to a witness in the absence of national security?"
The Army's attorney responded, "[W]ell, I think that
happens all of the time...and certainly with respect to confidential business
information [trade secrets]."
During the lengthy discussion that ensued, Judge Marcus
made the following comments, among others.
- "I haven't heard any suggestion of trade secrets,
of national security, or anything other than a litigation advantage in resisting
testimony because of the fortuity of this particular regulation."
- "And counsel for the Army seems to be intent
on protecting the Army's right to punish him for agreeing to testify."
- "I find it, in absence of at least some articulable
[sic] special interest to be protected for the mission or public purpose
of an agency, to give itself by regulation the right to prevent lawful testimony
in any proceeding in which its interests are challenged..."
- "[T]his is a democracy It is not a police
station [state]."
- "It is just anti-democratic, anti-due process
and...oppressive and autocratic..."
When the Army employee was recalled to the stand and
asked if he was comfortable proceeding with his testimony, he responded,
"Uhm, under the threat of reprisals, I don't want to testify as an expert
witness or give my opinion." He then stated that prior to the statements
made by the counsel for the Army, he had been prepared to offer opinion testimony.
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Transcript excerpts cited above are available upon
request.
