Witt v. Department of the Air Force et al

Filing 143

LIST re 137 List Revised Joint Witness and Exhibit List by Plaintiff Margaret Witt. (Dunne, Sarah)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The parties jointly submit the following witness and exhibit list for Plaintiff and Defendants. I. A. Expert Witnesses The names and addresses of the expert witnesses to be used by each party at the trial and the issues upon which each will testify are: (a) On behalf of Plaintiff: (1) Anthony Greenwald (Seattle WA); Professor Greenwald will testify concerning established principles of social and cognitive psychology that demonstrate people mistakenly overestimate the problems that will result when a minority group is integrated into an ongoing work group; and he will identify four factors which lead military authorities to erroneously
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The Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN WASHINGTON AT MAJOR MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE; ET AL., Defendants.

No. 06-5195 RBL REVISED JOINT WITNESS AND EXHIBIT LIST

WITNESSES

Revised Joint Witness and Exhibit List (Case No. C06-5195) - 1

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predict the behavior and attitudes of heterosexual servicemembers if gay and lesbian servicemembers are allowed to serve openly. (2) Nathaniel Frank (Brooklyn NY); Mr. Frank will testify on foreign militaries who permit open service of gays and lesbians and the lack of evidence showing any negative effect on unit cohesion, morale, discipline or good order; on changing social attitudes towards gay and lesbian individuals within the United States and U.S. Armed Forces; and on the history of military policies concerning gays and lesbians in the U.S. Armed Forces and other paramilitary employers. (3) Elizabeth Kier (Seattle, WA); Professor Kier will testify on social science research demonstrating that allowing gays and lesbians to serve openly in the military would have a positive effect on unit cohesion, morale, discipline or good order. (b) On behalf of Defendants: (1) Lt. General Charles E. Stenner, Jr. (Robins AFB, GA); General Stenner will testify on the need for uniform personnel policies in the military; the conclusion that if plaintiff were not discharged for violations of the `Don't Ask Don't Tell' policy, then the policy would not be applied uniformly; the conclusion that such a non-uniform application of a personnel policy, if done in one case or regionally, would risk unit cohesion, morale, good order, and discipline. B. Other Witnesses The names and addresses of witnesses, other than experts, to be used by each party at the time of trial and the general nature of the testimony of each are: (a) On behalf of Plaintiff: 1. Lisa Chisa (Gig Harbor, WA); Ms. Chisa will testify as to the 446th AES unit

culture; her experiences of introducing her current same-sex spouse to 446th AES members; her reaction to Major Witt's suspension and discharge. (will testify) 2. Thomas Hansen (preservation deposition); Mr. Hansen will testify as to the 446th

AES unit culture; his formal evaluations of Major Witt's performance and effect on unit cohesion. (will testify)
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3.

Edmond Hrivnak (Spanaway, WA); Mr. Hrivnak will testify as to the 446th AES

unit culture; his experiences serving with Major Witt; his reaction to Major Witt's suspension and discharge and the impact of Major Witt's discharge. (will testify) 4. Heather Julian (Spanaway, WA); Ms. Julian will testify as to the 446th AES unit

culture; her experiences serving with Major Witt; her reaction to Major Witt's suspension and discharge; Major Witt's attendance at her retirement ceremony. (will testify) 5. Stacey Julian (Spanaway, WA); Mr. Julian will testify as to the 446th AES unit

culture; his experiences serving with Major Witt; his reaction to Major Witt's suspension and discharge. (will testify) 6. Jenny Kopfstein (San Diego, CA); Ms. Kopfstein will testify as to her personal

experience serving as an officer in the U.S. Navy; the disclosure of her sexual orientation and its impact on her service; her subsequent service as an open lesbian in the Navy; her discharge from the U.S. Navy under Don't Ask Don't Tell. (will testify) 7. Judith Krill (Dupont, WA); Ms. Krill will testify as to the 446th AES unit culture;

her experiences serving with Major Witt; her personal observations of 446th AES servicemembers believed to be gay or lesbian in her role as Unit Deployment Manager; her reaction to Major Witt's suspension and discharge. (will testify) 8. Anthony Loverde (preservation deposition); Mr. Loverde will testify as to his

personal experience serving as a Staff Sergeant in the U.S. Air Force; his personal experiences on deployment; the disclosure of his sexual orientation and its impact on his service; his open service as a gay man in the Air Force; his discharge from the U.S. Air Force under Don't Ask Don't Tell; his subsequent service as an openly gay contractor in Afghanistan and Iraq. (will testify) 9. Darren Manzella (Rochester, NY); Mr. Manzella will testify as to his personal

experience serving as a Sergeant in the U.S. Army; his personal experiences on deployment; the disclosure of his sexual orientation and its impact on his service; his open service as a gay man in
A the Army; his discharge from the U.S. Army under Don't Ask Don't Tell. (will testify)

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10.

Faith Mueller (Tacoma, WA); Ms. Mueller will testify as to the 446th AES unit

culture; her experiences serving with Major Witt; her reaction to Major Witt's suspension and discharge. (will testify) 11. Vince Oda (W. Syracuse, UT); Mr. Oda will testify as to the 446th AES unit

culture; his experiences serving with Major Witt; his reaction to Major Witt's suspension and discharge. (will testify) 12. David Poulsen (Lakewood, WA); Mr. Poulsen will testify as to the 446th AES unit

culture for the 36 years that he served in the squadron; his experiences serving with Major Witt; his reaction to Major Witt's suspension and discharge. (will testify) 13. Jill Robinson (Tacoma, WA); Ms. Robinson will testify as to the 446th AES unit

culture from both an enlisted perspective and that of a commissioned officer; her experiences serving with Major Witt; her reaction to Major Witt's suspension and discharge; her personal knowledge of other gay or lesbian members in the unit. (will testify) 14. James Schaffer (Spokane, WA); Mr. Schaffer will testify as to the 446th AES unit

culture; his experiences serving with Major Witt; his experiences deploying with Major Witt; his knowledge of other gay and lesbian members in the unit; his reaction to Major Witt's suspension and discharge and the impact of Major Witt's discharge; his recognition of Major Witt at his own retirement ceremony. (will testify) 15. Heidi Smidt (Tacoma, WA); Ms. Smidt will testify as to the 40th/446th AES unit

culture that existed prior to and at the time Major Witt joined the unit; her experiences serving with Major Witt; her observations of other gay and lesbian servicemembers in the unit; her reaction to Major Witt's suspension and discharge. (will testify) 16. Kenneth Winslow (Issaquah, WA); Mr. Winslow will testify as to the 446th AES

unit culture; his formal evaluations of Major Witt's performance and effect on unit cohesion. (will testify) 17. Margaret Witt (Spokane, WA); Ms. Witt will testify as to her service in the 446th

A AES and its unit's culture; her suspension and discharge from the Air Force. (will testify)

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18.

Robert Gates (1000 Defense Pentagon, Washington, D.C. 20301); Secretary Gates

will testify as to the Department of Defense's current commitment to determine how to implement complete repeal of the Don't Ask Don't Tell policy (will testify unless DOJ withdraws its objections to Exhibits 63, 64, 65, and 80). 19. Col. (Ret.) Mary Walker (as designated in Exhibit 143): Colonel Walker will

testify as to perceptions of an inappropriate sexual relationship between the former unit commander and her executive officer; as to who can initiate a fact-finding inquiry into homosexual conduct; as to her experience and knowledge of current deployment conditions; and as to whether Major Witt's presence in the 446th AES has a negative impact on unit cohesion, morale, good order and discipline. (testify by deposition) 20. General Eric Crabtree (as designated in Exhibit 144): General Crabtree will testify

as to how he was ordered to initiate a fact-finding inquiry and the investigation into Plaintiff; as to Plaintiff's presence in the unit and her effect on unit cohesion; as to his experience with investigations and discharges under the Don't Ask Don't Tell policy and the open service of gay and lesbian U.S. servicemembers. (testify by deposition) 21. Plaintiff also reserves the right to call as a witness any individual identified on

Defendants' Witness list. (b) On Behalf of Defendants: 1. Chief Master Sergeant Janice Kallinen (446 MSS/DPMS (Attn: CMSgt

Kallinen) 1205 12th St NE Ste 120 Joint Base Lewis McChord WA 98438-1320); Chief Master Sergeant Kallinen will testify as to plaintiff's honorable discharge and her discharge certificate. (will testify) 2. Margaret Witt (Spokane, WA); Ms. Witt will testify as to her service

in, suspension from, and discharge from the Air Force Reserve; publicity regarding this lawsuit and/or the `Don't Ask, Don't Tell' policy; her instances of conduct (statements and acts) implicating the `Don't Ask, Don't Tell' policy; standards of
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conduct for Air Force officers; her employment after the Air Force Reserve. (may testify) 3. Col. Janette Moore-Harbert (446th AES, Barnes Bldg. 1216 Suite A-125, Joint base Lewis McChord, WA 98438); Col. Moore-Harbert will testify as to the effect that plaintiff's potential return to service would have on unit cohesion, morale, good order and discipline on her squadron; standards of conduct for Air Force officers. (may testify) 4. Lt. Col. Adam Torem (10471 20th St. Suite 262, Elmendorf AFB, AK 99506); Lt. Col. Torem will testify as to the report and findings of fact regarding plaintiff's conduct; standards of conduct for Air Force officers. (may testify) 5. Pat McChesney (Spokane, WA); Mr. McChesney will testify as to facts regarding his notification. (may testify) 6. Col. (Ret.) Linda Carneal (Spanaway WA); Col. Carneal will testify as

to the absence of any sexual relationship between her and her executive officer; standards of conduct for Air Force officers. (may testify) 7. MSgt. Steve Westmoreland (155 Richard Bay Blvd., Robins AFB, GA

31098); MSgt. Westmoreland will testify as to the administrative process concerning involuntary discharge from the Air Force Reserve. (may testify) 8. Tiffany Jensen (Spokane, WA); Ms. Jensen will testify as to the factual circumstances relating to conduct that led to plaintiff's discharge. (may testify) 9. Margaret Witt (as designated in Exhibit A-33), but by way of summary:

her service in, suspension from, and discharge from the Air Force Reserve; publicity regarding this lawsuit and/or the `Don't Ask, Don't Tell' policy; her instances of conduct (statements and acts) implicating the `Don't Ask, Don't Tell' policy; standards of conduct for Air Force officers; her employment after the Air Force Reserve. (testify by deposition)

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10.

Col. (Ret.) Mary Walker (as designated in Exhibit A-34), but by way of

summary: her lack of knowledge of gay or lesbian service members; plaintiff's inquiry into the sexual orientations of other service members; reaction to plaintiff's suspension from the Air Force Reserve; the deployment conditions of the squadron. (testify by deposition) 11. Dennis Laich (as designated in Exhibit A-35), but by way of summary:

the differences between military service and civilian employment; the effects of extramarital relationships on military service, especially with respect to military officers. (testify by deposition) 12. Nathaniel Frank (as designated in Exhibit A-36), but by way of

summary: his favoring of the Don't Ask, Don't Tell policy over its immediate predecessor; the importance of considering the views of senior military leadership in formulating military personnel policies; divisiveness associated with polling unit members regarding the `Don't Ask, Don't Tell' policy as-applied to plaintiff; the unfairness associated with a regional approach to a military personnel policy; the harmfulness of placing unit members in a position of having to report fellow unit members' conduct; the applicability of several congressional findings (and all of the findings of fact) regarding the `Don't Ask, Don't Tell' policy to the conditions of plaintiff's military service. (testify by deposition) II. A. Admissibility stipulated: Plaintiff's Exhibits 1. Award 2. Memorandum from Colonel Walker to Plaintiff, Nov. 5, 2004 3. Torem Report, Oct. 20, 2004 4. 1988 Officer Effectiveness Report for Plaintiff 5. 1987 Officer Effectiveness Report for Plaintiff Revised Joint Witness and Exhibit List (Case No. C06-5195) - 7
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EXHIBITS

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6. July 12, 2007 Reserve Order 7. 2005-06 Officer Performance Report 8. 2004-05 Officer Performance Report 9. 2003-04 Officer Performance Report 10. 2002-03 Officer Performance Report 11. 2001-02 Officer Performance Report 12. 2000-01 Officer Performance Report 13. 1999-2000 Officer Performance Report 14. 1998-99 Officer Performance Report 15. 1997-98 Officer Performance Report 16. 1994-95 Officer Performance Report 17. 1993-94 Officer Performance Report 18. 1992-93 Officer Performance Report 19. 1991-92 Officer Performance Report 20. 1990-91 Officer Performance Report 21. 1989-1990 Officer Performance Report 22. 1988-89 Officer Performance Report 23. April 1988 to October 1988 Officer Performance Report 24. 1991-92 Officer Performance Report 25. 1990-91 Officer Performance Report 26. Supplemental Evaluation Sheet 27. Record of Board Proceedings 28. NDRI Rand Report 29. July 21, 2000 Memorandum from Under Secretary of Defense 30. 1993 GAO Report to Congress 31. 1992 GAO Report to Congress 32. December 22, 2004 Department of Defense Memo Revised Joint Witness and Exhibit List (Case No. C06-5195) - 8
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33. August 30, 2005 Department of Defense ­ DOAF Memo 35. September 14, 2004 Torem Memo 36. July 7, 2004 Memo to Torem from Crabtree 37. July 7, 2004 Memo from Duignan 40. Air Force Instruction 36-3209 February 1998 41. Photograph of 446th Unit Members 42. Photograph of 446th Unit Members 43. Photograph of 446th Unit Members 44. Photograph of 446th Unit Members 45. Photograph of 446th Unit Members 46. Photograph of 446th Unit Members 47. Photograph of 446th Unit Members 48. Photograph of 446th Unit Members 49. Photograph of Plaintiff 50. Photograph of Plaintiff 51. Photograph of 446th Unit Members 52. Photograph of 446th Unit Members 53. Photograph of 446th Unit Members 56. Elizabeth Kier CV 57. Nathaniel Frank CV 58. Anthony Greenwald CV 59. February 2005 GAO Report 66. May 2, 2010 email 67. Retirement Ceremony Invitation 68. Photograph of C-17 and C-141 69. June 21, 2010 Memo from Swint to Plaintiff 73. July 26, 2010 Retirement Ceremony Invitation Revised Joint Witness and Exhibit List (Case No. C06-5195) - 9
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75. May 5, 2008 Memo from General Brady 76. October 1, 2004 Memo from Crabtree to Torem 77. Memo from Duignan 78. July 13, 2004 Memo from Crabtree to Torem 79. November 6, 2004 Memo 87. 1996-97 Officer Performance Report 88. 1995-96 Officer Performance Report 89. April 1995 to November 1995 Officer Performance Report 104. January 10, 2000 Memo from Ryan to Peters 106. Photograph of Plaintiff 107. Photograph of Plaintiff 108. March 17, 2010 Edmond Hrivnak Video produced during deposition 109. Organization charts 110. July 21, 2000 Memo 113. December 8, 2004 Memo from Geringer 114. February 1, 2006 email 117. Air Force Instruction 36-3209 119. April 29, 2008 email 120. September 1, 2003 Walker Memo 122. July 10, 2007 Action by Secretary of Air Force 123. Awards 125. Air Force Brochure Defendants' Exhibits A-1 A-4 A-5 A-6 Witt Certificate of Honorable Discharge Memorandum from General Duignan to Colonel Crabtree, July 7, 2007 Memorandum from Colonel Crabtree to Major Torem, July 7, 2004 Torem Report, Oct. 20, 2004
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CLU OF WASHINGTON FOUNDATION 901 Fifth Avenue 630 Seattle, Washington 98164 [phone]

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A-7

Memorandum from Colonel Mary Walker to HQ/AFRC re: Recommendation for Action under AFI 36-3209, Nov. 6, 2004

A-9

Memorandum from Colonel Mary Walker to Margaret Witt re: Denial of Participation, Nov. 10, 2004

A-10 Dec. 8, 2004 Legal Review of Commander's Recommendation A-11 Memorandum from Colonel Crabtre to HQ AFRC, Dec. 22, 2004 A-13 Memorandum from AFRC to 446MSS, Aug. 30, 2005 A-14 Notification of Separation Action, Feb. 23, 2006 A-15 Request for Board Hearing, March 15, 2006 A-16 Memorandum from Lt. General John Bradley to AFRC/CC, Mar. 21, 2007 A-17 Memorandum from HQ AFRC to Margaret Witt, April 13, 2007 A-18 Memorandum from Margaret Witt to HQ AFRC, May 5, 2007 A-20 Record of Air Force Personnel Recommendation Board A-21 Action of the Secretary of the Air Force, July 10, 2007 A-22 E-mail from Margaret Witt to Deena Harris, Sept. 21, 2006 A-23 E-mail from Margaret Witt to Craig Mason, Oct. 3, 2006 A-24 E-mail from Margaret Witt to Ken ?, Oct. 7, 2006 A-25 E-mail from Margaret Witt to Grethe Cammermeyer, Dec. 10, 2008 A-26 E-mail from Margaret Witt to Heidi ?, July 10, 2009 A-27 Memorandum from Eddie Swint Attaching Amendment to Separation Order, June 21, 2010 A-28 E-Mail from Margaret Witt to Elizabeth Wurtz, June 26, 2007 A-29 E-mail from Margaret Witt to Nancy Royse, Sept. 21, 2006 A-30 Senate Hearing 103-845 A-31 Discharge Board Record A-32 July 12, 2007 Discharge Order
A A-33 Designated portions of the Deposition Transcript for Margaret Witt

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A-34 Designated portions of the Deposition Transcript for Mary Walker A-37 Text of 10 U.S.C. § 654 A-38 Plaintiff's answers to RFAs 1-7 A-39 Plaintiff's answer to Int. 10 A-40 Plaintiff's answer to RFA 34

B. Authenticity stipulated; admissibility disputed: Plaintiff's Exhibits 38. August 30, 2008 Stenner speech 39. August 31, 2008 Stenner speech 54. Efficiacy of Don't Ask Don't Tell by Colonel Om Prakash 55. Sexual Orientation Disclosure, Concealment, Harassment, and Military Cohesion: Perceptions of LGBT Military Veterans 60. Attitude of Iraq and Afghanistan War Veterans toward Gay and Lesbian Service Members by Bonnie Moradi and Laura Miller 61. Homosexuals in the U.S. Military by Elizabeth Kier 62. Rights and Fights: Sexual Orientation and Military Effectiveness by Tarak Barkawi, Christopher Dandeker, Melissa Wells-Petry, and Elizabeth Kier 63. February 2, 2010 Hearing of Senate Armed Services Committee 64. February 3, 2010 Hearing of House Armed Services Committee 65. March 25, 2010 Briefing 70. Certificate of Release or Discharge from Active Duty 71. June Memo from Liggett 72. 2001-02 Fitness Report and Counseling Record 74. Tacoma Police Department Report 80. March 25, 2010 Transcript 81. April 4, 2008 email from Loverde to Welch Revised Joint Witness and Exhibit List (Case No. C06-5195) - 12
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82. April 28, 2008 Memo from Nutt 83. April 28, 2008 Memo from Horn 84. June 2, 2008 Memo from Yakowenko 85. Certificate of Release or Discharge from Active Duty 86. June 2, 2008 Memo from Eslinger 90. December 2007 Serious Incident Report 91. January 2008 Serious Incident Report 92. February 2008 Serious Incident Report 93. March 2008 Serious Incident Report 94. April 2008 Serious Incident Report 95. May 2008 Serious Incident Report 96. June 2008 Serious Incident Report 97. Memo 98. January 24, 2008 Memo from Moore-Harbert to Kearney 99. February 4, 2008 Memo from Kearney 100. October 25, 2007 Incident Report Summary 101. April 2, 2010 Memo from Newton 102. April 1, 2010 Memo from Schwarz 103. April 2, 2010 Memo from Newton 105. March 20, 2002 BOI Record of Proceedings 111. PERSEREC September 1991 112. October 1, 1993 Memo from Dorn 115. Air Force Instruction 36-3206 116. Air Force Instruction 36-3207 121. July 15, 1999 FORSCOM Regulation 500-3-3

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126. Homosexuals in the Military -- Open Integration and Combat Effectiveness by Elizabeth Kier (Fall 1998) 127. Effect of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence, April, 2000, by A. Belkin and J. McNichol. 128. A. Belkin & M. Levitt, Homosexuality and the Israeli Defense Forces: Did Lifting the Gay Ban Undermine Military Performance? (2001) 129. A. Belkin & R.L. Evans, The Effects of Including Gay and Lesbian Soldiers in the British Armed Forces: Appraising the Evidence, November, 2000. 130. Belkin & J. McNichol, The Effects of Including Gay and Lesbian Soldiers in the Australian Defense Forces: Appraising the Evidence, September, 2000. 131. G. Bateman & S. Dalvi, Multinational Military Units and Homosexual Personnel, February, 2004. 132. N. Frank, Gays and Lesbians at War: Military Service in Iraq and Afghanistan Under "Don't Ask, Don't Tell," September 15, 2004. 133. Bowen, A. M., & Bourgeois, M. J. (2001). Attitudes toward lesbian, gay and bisexual college students: The contribution of pluralistic ignorance, dynamic social impact and contact theories 134. Freedman, J. L. (1969). Role playing: Psychology by consensus. 135. Gilbert, D. T., Pinel, E. C., Wilson, T. D., Blumberg, S. J., & Wheatley, T. P. (1998). Immune neglect: A source of durability bias in affective forecasting 136. Kawakami, K., Dunn, E., Karmali, F., & Dovidio, J. F. (2009). Misreading affective and behavioral responses to racism. 137. LaPiere, R. T. (1934). Attitudes versus actions. 138. Milgram, S. (1963). Behavioral study of obedience.
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139. Nosek, B. A., & Hansen, J. J. (2008). The associations in our heads belong to us: Searching for attitudes and knowledge in implicit evaluation 140. Nosek, B. A., Smyth, F. L., Hansen, J. J., Devos, T., Lindner, N. M., Ranganath, K. A., Smith, C. T., Olson, K. R., Chugh, D., Greenwald, A. G., & Banaji, M. (2007). Pervasiveness and correlates of implicit attitudes and stereotypes 141. Prentice, D. A., & Miller, D. T. (1993). Pluralistic ignorance and alcohol use on campus: Some consequences of misperceiving the social norm. 142. July 17, 2000 Memo from Kopfstein 143. Designated portions of the Deposition Transcript for Colonel Mary Walker 144. Designated portions of the Deposition Transcript for General Eric Crabtree Defendants' Exhibits A-2 Email from Pat McChesney to General Jumper, June 14, 2004 A-3 Email Chain A-8 Torem Declaration, Nov. 10, 2004 A-12 Declaration of Tiffany Jensen, May 2, 2005 A-19 Memorandum for the Secretary of the Air Force, July 6, 2007 A-35 Designated portions of the Deposition Transcript for Dennis Laich A-36 Designated portions of the Deposition Transcript for Nathaniel Frank

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C. Authenticity and admissibility disputed: Plaintiff's Exhibits 124. September 2003 Memo Respectfully submitted, DATED this 2nd day of September, 2010. AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: _/s/ Sarah A. Dunne ______________ Sarah A. Dunne, WSBA #34869 Sher S. Kung, WSBA #42077 901 Fifth Avenue #630 Seattle, WA 98164 Tel: [phone] [e-mail] [e-mail] CARNEY BADLEY SPELLMAN __/s/ James Lobsenz________________ James Lobsenz, WSBA #8787 701 5th Ave Ste 3600 Seattle, WA 98104-7010 Tel. [phone] [e-mail] Attorneys for Plaintiff DATED this 2nd day of September, 2010. U.S. DEPARTMENT OF JUSTICE By: _/s/ Bryan R. Diederich________________ Peter J. Phipps Bryan R. Diederich Stephen J. Buckingham United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, D.C. 20001 Tel: [phone] Fax: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Defendants

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