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):

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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.

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.

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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.

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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?")

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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!