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Saturday, August 07, 2004

Captain George Elliott's "retraction" and his two affidavits regarding Kerry's Silver Star

The indefatigable Tom Maguire of Just One Minute continues to earn the most frequent comments I see about him from other bloggers — "read the whole thing" and "just keep scrolling." 

This post entitled "Kranish Is Cooked" — on the so-called "retraction" by SwiftVets' USN Captain (ret.) George Elliott as reported Friday by Boston Globe reporter Michael Kranish — does a splendid job of debunking the debunking.   Tom writes that his "first reaction [Update: and second, and third] is that Kranish wrote a wildly deceptive and misleading story," and adds:

Let's give Kranish a little credit here — Elliot does seem to be on both sides of the "did he shoot him in the back" question. But this early quote in the story — "Elliott said in an interview that he had made a 'terrible mistake' in signing an affidavit that suggests Kerry did not deserve the Silver Star" — seems to be an out of context interpretation of the full quote, which runs later — '''I still don't think he shot the guy in the back,' Elliott said. ''It was a terrible mistake probably for me to sign the affidavit with those words. I'm the one in trouble here.'"

One might plausibly argue, as Elliott now does, that the "terrible mistake" was to cite that somewhat immaterial detail, rather than to focus on the (subjective but irrefutable) war crimes accusations.

[Bracketed portion and italics by Mr. Maguire.]  My own hunch, however, is that the "terrible mistake" may instead have referred to the first affidavit's somewhat sloppy draftsmanship, and specifically to its susceptibility to being misinterpreted as an assertion by Captain Elliott that he had personal knowledge of Kerry's actions in the field (of which, more below).  Otherwise, I generally agree with Tom's analysis and have nothing of substance to add to it. 

(The Globe insists that it stands by its story; decide for yourself whether it's still spinning rather than reporting.)

Tom's post also links Human Events Online's post that includes scans of both Captain Elliott's July 21 and August 6 affidavits.  One of Tom's commenters has focused on the technical details of the two affidavits, with respect to which I'd offer these trivial bits of legal and evidentiary analysis (with a bit of idle musing thrown in at the end):


First, Commenter "martin" writes [bracketed portion his]:

Incidentally, someone needs to follow up on Elliot's statement in the Globe that "In a hurry I signed it and faxed it [the affidavit] back."  This is quite common — unfortunately it's also fraud. I.e. you need an affidavit signed — you fax it to a witness — he signs it — faxes you the signature — drops the original signature in the mail — you notarize the fax — make a copy — it looks like an original. Later when the signed original shows up — you notarize it — and voila — there's your original. Except the Notary and the affiant were never in the same room. So the "before me personally appeared" part is perjury.

The Globe quote presumably refers to the July 21 affidavit, upon which the SwiftVets presumably relied in producing the video.  However, on its face, it was verified by a notary public whose stamp reads, "Notary Public — Delaware."  The August 6 affidavit was verified by a different notary, whose stamp doesn't mention her state of licensure, but it includes a handwritten notation of Captain Elliott's  Delaware drivers license number and expiration date.  The very strong inference, then, is that whoever prepared the affidavits in draft form for review and signature faxed them to Captain Elliott in Delaware, where he lives, and that he then signed and had both affidavits notarized during an in-person appearance before each of the respective notaries.  He probably then faxed a copy of the affidavits to someone working with the SwiftVets — but only after they'd been notarized.

George Elliott (from SwiftVets' video)If instead, as martin assumed, Captain Elliott had signed the affidavits in Delaware and then either faxed or mailed them elsewhere for notarization, martin would be correct — such a procedure would have been improper.  Calling them "fraud" or "perjury" is a bit too strong, since those crimes depend on both materiality of the incorrect statement and specific criminal intent for them to deceive, either of which seem improbable to me even if martin's assumption were correct.   The key requirement is that the notary confirm that the witness is who he's claiming to be (presentation of a drivers license being the normal way of doing so if the witness is not already personally known to the notary), and that the notary have authority to administer oaths in the jurisdiction where the verification is executed — and those requirements seem to have been satisfied here, at least on the face of both affidavits. 

(Of the two, the "faxed in a hurry" affidavit from July 21 is the one most clearly executed in person in Delaware.  And even the handwritten drivers license information on the August 6 affidavit looks more like the notary's writing than Captain Elliott's.  As to it, the more reasonable inference is that it was done by the notary based on an in-person presentation of the drivers license.  It strikes me as unlikely that Captain Elliott would have added that at his own initiative, or that a notary who's conscientious enough to insist that it be added would have then been sloppy enough to have relied on the info being relayed over the phone instead of an in-person presentation.  Unfortunately, I haven't been able to find an online directory of either Delaware or Texas notaries to look for these notaries' respective names.)

The faxing itself is inconsequential.  The original document — bearing a pen-and-ink signature from both the witness and the notary who verified the witness' signature (and if the notary were truly following good procedure, administered an oath orally at the time of the signature) — is indeed the "best evidence" for the making of the affidavit.  But both state and federal courts routinely accept into evidence — almost always without a "best evidence rule" objection — faxed and/or photocopied versions of notarized documents.  (More recently, in my own practice, I've taken to using .pdf scanned versions rather than faxed ones whenever I can, simply because they're more legible and don't have the fax header/footer additions.)

Very, very rarely in my 24 years of practice, I've seen a desperate lawyer raise a "best evidence" objection on grounds that a proffered exhibit is a fax or a photocopy.  The universal response has been a frown from the judge, followed by, "Counsellor, do you have any specific reason to doubt that this faxed version differs from the original?"  If the objector persists, the typical response to that is, "I'm admitting this exhibit provisionally and subject to your opportunity to renew that objection when and if you can show a difference between it and the original."  Or at worst, the judge will provisionally admit the exhibit and direct the offering party to produce the original within a reasonable time, for cross-checking and, perhaps, substitution of the original into the record in lieu of the fax or photocopy.  Thus does legal procedure and evidentiary law accommodate our modern Information Age society; court proceedings would grind almost to a halt if we had to return to the days of wax seals, colored ribbons, and nothing-but-originals.


Second, martin makes a another far more substantive point, which I've also seen argued on various blogs in which Captain Elliott's assertions are being debated:

This testimony is worthless anyway. You can only testify as to your personal knowledge. Elliot wasn't there. This second affidavit — quoting kranish quoting Kerry — is triple hearsay and actually embarrassing (as far as admissibility into court — politically — who knows/cares).

He's certainly right that the "court of public opinion" rarely distinguishes between hearsay and non-hearsay in the technical legal sense of those terms.  He's also correct that in general, to be competent, testimony needs to be based on personal knowledge.  Both affidavits contain a rote recitation of personal knowledge, but courts routinely hold that such recitations are not conclusive, and that affidavits, to be competent, must affirmatively show the specific factual basis for the witness' personal knowledge.   

Obviously, Captain Elliott has no personal knowledge as to whether John Kerry, in combat in a field operation that Captain Elliott didn't participate in, shot someone in the back.  Indeed, in the later, more carefully drafted affidavit from August 6, Captain Elliott specifically disclaims such personal knowledge.

Fairly read, however, both affidavits are reasonably clear that Captain Elliott was not attempting to give direct testimony from personal knowledge on that question.  Rather, what's important here is what information Captain Elliott was acting on when he approved Kerry's Silver Star nomination.  Information that routinely would be inadmissible second-hand "hearsay" if offered in court to prove the truth of the factual assertions in it may, nevertheless, have "independent legal significance" — and hence be treated by courts as non-hearsay and admissible — when offered for the different purpose of showing what information someone had available to him when he took a particular action or made a particular decision. 

In both affidavits — albeit with considerably more precision in the later one — Captain Elliott's testimony is being offered to prove a point on which he does have personal knowledge — specifically, what information was available to him when he recommended Kerry for a Silver Star.


Finally, an additional and distinct technical evidentiary objection could still be asserted to the statement in the second affidavit that "Had I known the facts, I would not have recommended Kerry for the Silver Star for simply pursuing and dispatching a single wounded, fleeing Viet Cong."  Quite simply, Captain Elliott is speculating and offering a conclusion as to what he would have done, had some other set of information been before him at the time he recommended Kerry for the Silver Star.  It's certainly a well-informed guess.  But he's still saying, "If the (second-hand) information available to me back then when I made the Silver Star recommendation had included what I've later learned (by way of the admissions Kerry later made in his book, of which I still have no personal knowledge, but which I find credible because they're an ugly confession, and why would someone make such an admission against his own interest about something so ugly unless it were true?), I believe now that I'd have done then something different than that which I actually did then on the basis of the more limited (second-hand) information that was then available to me."

A good courtroom advocate, however, could probably get around the speculation problem by reformulating the question.  One way would be to lay out the facts, still treating Captain Elliott solely as a "fact witness," and then leave it to the fact-finder (court, jury, public opinion) to draw the conclusion as to whether he'd have acted differently:  "During your entire career, Captain Elliott, did you ever approve a Silver Star recommendation on the basis of a report that the nominee had shot a wounded, fleeing Viet Cong in the back?  As of the time you were in a position to make such recommendations, did you believe, in general, that such conduct could merit a Silver Star recommendation?" 

The second way would be to lay a predicate to qualify Captain Elliott as being knowledgeable in general about standards then applied by the Navy for the award of Silver Stars — in legal terms, to qualify him as an expert witness on such standards.  He could then render his opinions, including speculative and conclusory ones, as an "expert."  If this worked, the resulting testimony might be even more powerful in scope, to the effect that "Not only would I not have recommended Kerry for a Silver Star, but no rational officer in my same position would have either."  Like all expert opinions, this one would be subject to impeachment on cross-examination even after it had passed the threshold tests for admissibility.  ("Isn't it true that such awards are highly fact-specific?  Isn't it true that such decisions are highly subjective?  Isn't it true that presented with an equal number of nominations, no two officers in your position would likely have made exactly the same decisions as to which ones to forward on with approving recommendations?")


In musing about the entire SwiftVets controversy and John O'Neill's upcoming book, it occurred to me that  John O'Neill would probably like nothing better than for John Kerry to sue him and the SwiftVets for defamation.  Such a lawsuit would give O'Neill the opportunity to put all of this history, from all of its various fact witnesses, under the microscope of a public trial with real evidentiary standards.  The proceedings would quickly come to look like the celebrated Westmoreland v. CBS defamation trial from some years ago, and undoubtedly would nearly rival that trial in its complexity and probably surpass it in terms of public interest. 

But that, of course, will never happen.  Kerry is the quintessential "public figure" who'd have to prove not only the untruth of O'Neill's and the SwiftVets' allegations, but also that those allegations were matters of fact rather than opinion, and that they were made with "actual malice" (defined as actual, subjective knowledge that they were untrue or reckless disregard for their truth).  Threat letters from the Kerry Campaign and the Democratic National Committee notwithstanding, I do not believe that that lawsuit will ever be filed — and not just because it would be a sure loser on its merits.  I sincerely doubt that Kerry is half the legal strategist or courtroom lawyer that John O'Neill is, but  he's shown himself throughout his career to be a canny and formidable politician — and as such, surely he can see a tar baby when it's thrown in front of him.

On the other hand, surely he could have seen how the Bush campaign would use the "I actually voted for the $87 billion, before I voted against it" line.  Perhaps Kerry will surprise me and give John O'Neill his wish.  Now that would be a trial I'd gladly stand in line for to get a seat in the peanut gallery!

Posted by Beldar at 02:30 PM in Law (2006 & earlier), Mainstream Media, Politics (2006 & earlier), SwiftVets | Permalink


Other weblog posts, if any, whose authors have linked to Captain George Elliott's "retraction" and his two affidavits regarding Kerry's Silver Star and sent a trackback ping are listed here:


(1) GT made the following comment | Aug 7, 2004 2:53:49 PM | Permalink

Without repeating what has been debated at Tom's site I still don't understand what the 'shooting in the back' has to do with anything.

The crew present at the time agrees that a VC soldier armed with a weapon capable of blowing the boat and the crew up and did not surrender was chased and killed by Kerry. Who cares how he killed him? Was he supposed to play hide and seek, giving the armed enemy 30 seconds to regroup? He killed him, period. And he did so by charging after him not knowing if there were other VC hidden in the vicinity. If he killed him from the back, the front or sideways it makes no difference.

(2) Beldar made the following comment | Aug 7, 2004 3:36:30 PM | Permalink

That's a very fair question, GT, and important even though a bit beyond the scope of what I originally intended to write about. Quite arguably it's more important than what I've written about.

I suppose one could argue that in Captain Elliott's mind, the front-or-back distinction would have been the crucial tipping point in distinguishing between the degree of valor that would merit a Silver Star and that which all soldiers and sailors are expected to display in the ordinary course of their duty.

Were I cross-examining Captain Elliott, however, I'd then ask: "So chasing a wounded, fleeing Viet Cong soldier with a rocket launcher and shooting him from the front, when he whirled to confront you, would merit a Silver Star. But chasing down and killing a wounded, fleeing Viet Cong soldier with a rocket launcher two seconds earlier, when his back was still to you and before he'd reached cover to shoot at you from, doesn't. Is that your testimony, Captain Elliott? Uh-huh. Well, okay, then, are you saying that two-second difference might mean the difference between a Silver Star and, say, a Bronze Star? Uh-huh, I see. How about if he wasn't really wounded? Would that bump this up into Medal of Honor territory? Then let me ask you this, Captain Elliott: In reconstructing your views today as to what you might have done differently on this medal nomination had you been told then what you later read in Sen. Kerry's book, can you look these jurors in the eyes and swear to them that your opinion today has not possibly been influenced in the slightest way by John Kerry's antiwar activities after he'd been discharged from the Navy?"

I think that would be fairly effective impeachment — even before confronting Captain Elliott with his statements made during Kerry's 1996 senate campaign that at least superficially seem to be inconsistent with what he's saying now. And the effectiveness of this line of cross-examination doesn't rely on Captain Elliott being a liar or a partisan today, but on the inherent problems in him guessing today — more than thirty years after the fact — what he might have done differently then had he been presented with more or different information.

It's for that reason that I tend to find the SwiftVets' assertions regarding whether Kerry earned his medals to be less effective than some of their other assertions. Whether someone "deserved" or "earned" a medal is an inherently subjective evaluation. They'd be better off, I think, sticking strictly to facts, and letting their audience draw its own subjective conclusions.

(3) Patrick R. Sullivan made the following comment | Aug 7, 2004 5:19:04 PM | Permalink

Clearly it isn't just whether Kerry shot him in the back that is important. Kerry was (you can read it in the Kranish book's version) one of several Americans (or their allies) who ran after the VC and shot at him. There were two Swift Boats loaded with soldiers, and it was pre-planned to beach the boats and unload those soldiers for the purpose of killing or capturing the enemy.

This is what Elliott didn't know until recently, apparently. And what Kerry did is routine, infantry action. Not Silver Star valor. The only thing unusual is that Kerry left his Swift Boat--which is why Elliott's first inclination was to court martial Kerry.

(4) Beldar made the following comment | Aug 7, 2004 6:08:55 PM | Permalink

Patrick, thanks for commenting! Both this one and your comment on my post from yesterday are informative and well-argued on aspects that I've not inquired into deeply myself.

(5) martin made the following comment | Aug 7, 2004 8:30:56 PM | Permalink

Beldar-thanks for the amplification on the affidavits. You're right-they do have the look of being sworn before a storefront notary. Furthermore, i agree it's not perjury per se just to fudge the mechanics. But since fraud and deceit allegations are the order of the day-I thought I'd just jump right in.

I wonder who actually drafted these affidavits. Elliott himself or is someone summarizing his testimony and sending him the afffidavit to be signed? And if so-what is being prompted/discouraged? Anyway-my first visit to this blog. Seems you're quite prepared to deal with these issues-so I'll leave it in your capable hands.

(6) Beldar made the following comment | Aug 7, 2004 9:50:14 PM | Permalink

Thanks for the visit and the comment, martin! Your excellent question has set me off on enough of a lecture that I'm replying via a new post, rather than here in my comments section.

(7) Kenneth E. Weinke made the following comment | Aug 11, 2004 7:09:59 PM | Permalink

As usual it is the liberal technique to spin the subject from the initial premiss to one that can be more redily defended. The position of the Swifties is that Kerry is not fit to be The Commader in Chief, has swung to whether he is entitled to certain decorations.
An officer, any officer, who returns from active duty and condems those with whom he has served, and performed in concert with those he has served can no longer lead those men.
Adorn him with medals, if you will, for individual actions,but he can no longer lead them. The logic follows we did the acts together but you people are bastards and I am a hero suited for leadership roles.

(8) HS Dunn made the following comment | Oct 19, 2004 4:38:15 PM | Permalink

The reason Kerry will not sign form 180 is that up untill Clinton upgraded his Discharge
Kerry's was less than Honorable.

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