This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

Update 15.9.14.

Here is a link to the government notice of an intent to appeal, and a motion I have filed with the ACCA.

So, client is a medical provider initially accused of committing sexual contact by a, “fraudulent representation that the sexual contact served a professional purpose.”

Six former patients alleged that when the client gave them a heart and lung examination when they presented for medical care, he didn’t need to give one, or that it was done improperly.

After the Article 32, UCMJ, investigation the convening authority elected not to proceed on one of them, but elected to refer five specifications to general court-martial.

At trial we litigated a motion that the CA abused his discretion because the IO did not find reasonable grounds to believe a crime had been committed for three of the five.  The military judge denied the motion.

At trial we raised the motion for dismissal for failure to state an offense.  The touching’s had all been done with a stethoscope.  At no time did any complaining witness say she was touched by his body.  The argument is based on a failure in the statute to require that an object can be the source of the wrongful contact vice what the statute says – a body part.  The judge decided to defer ruling until the RCM 917 stage of trial.

Prior to evidence, the prosecution withdrew two specifications which left three for trial before the members.  The military judge denied an RCM 917 motion and again kicked the failure to state can down the road.

The members found the client guilty of only one of the three specifications.  At that time I asked the judge to enter a finding of not guilty citing to United States v. Griffith, and also asked for a decision on the motion.  Deferred again.

The members adjudged a dismissal only.

At this time the judge denied the Griffith motion, but did dismiss the specification for failure to state an offense.

Now we are waiting to see if the Gov. will take an Article 62 appeal.

This case presents some interesting factual, legal, and strategy issues.  But regardless the client’s not in jail.

Prof. Berman at sentecing law and policy invites our attention to an interesting new decision from the Third.

US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) .

We all of us have an a client who is charged with distribution of CP because they were using a P2P program such as Limewire, and where the automatic settings placed information in the “shared” folder.  Because the information is in the shared folder it is accessible to others who search Limewire and come across it.  Actually many clients have been caught through the FBI or some other enforcement agency trolling Limewire for such information.

The opinion in Husmann makes much of the “intentional” placing of CP in the shared folder.  But does not address the way in which the program, by default places everything in the shared folder. Normally the use needs to affirmatively change the settings for downloads not to go in the shared folder.  The opinion assumes the subject files were deliberately placed in the shared folder making them accessible to others.

So, you have a client who downloads CP via a P2P program, doesn’t realize about the automatic settings upon execution of the P2P software, and there is NO evidence that someone queried and received CP from that client’s account?  In Husmann the investigators went through the various logs to see if they could find any evidence of another computer connecting and downloading, but weren’t able to find such evidence.

Currently in the Third the person may not be convicted, see Husmannn.  It’s a 2-1 decision with a strong dissent.  It’s only the Third.

Can you use the rationale from Husmann to defeat a conviction for distribution.  Keep in mind that he court was construing the definition of “distribution” under the federal statute.  And if it’s not distribution is it an attempted distribution.

All in all an interesting read for the all to common CP case.

How many times during a trial do you try to guess what the members are thinking, and what their decision is – I would suggest we do that many times throughout a trial.  We do this because we are responding to a client’s comment about a look, a question, or the demeanor of one or more members. We do this to try and sense how our case is going for tactical reasons.  We do this because we hope to gain some “insight” on the next steps.  A pretty common reason is whether or not we feel the client needs to testify.

Of course we can never know what the members are really thinking.  During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members.  But what happens if their thinking becomes more obvious or blatant – or possibly so.  At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

Another area of concern is when you hear about comments made by one or more members outside the courtroom.  Perhaps something overhead in the passageway or in the head.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

As with all things this is a matter of judgment.  Do you upset the members about something that is nothing, do you draw something to the attention of the members you’d rather they not focus on.  Or do you have a problem and it needs to be addressed now!

I had a case at GitMo some years ago where there was in court wrangling over a particular legal definition.  After a break we found out one of the members was looking the definition up in a legal text book.  The members deliberation was the SJA law library.  We dealt with that on the record.  This would be extraneous information.  See e.g., United States v. Lambert55 MJ 293 (C.A.A.F. 2001), about inquiry into members conduct.  Lambert is not “the” case, but it’s worth the read.  Check out, United States v. Dugan, 58 MJ 253 (C.A.A.F. 2003).

I am reminded of this piece of trialcraft by the case of United States v. Axsom, _ F.3d _ (8th Cir. Aug. 4, 2014) (No. 12-3703), brought to us by our friends at federal evidence review blog.  In that case the defense claimed that two members had come to a premature decision on guilt.Two items got the attention of the parties and the judge.

“[D]uring voir dire, “A prospective juror reported that banter between a Court Security Officer and an FBI case agent in the courtroom, while the judge and attorneys were in the jury room conducting individual voir dire, may have affected her outlook about the trial.”

o[O]n one morning during the trial, when the jurors were lining up to enter the courtroom, an alternate juror overheard one juror state: “It looks like this is going to be a long day today and tomorrow. Today may be the bulk of it.” A second juror replied, “Yeah . . . But I don’t know how much more they could say. It looks like we already know where it’s headed.”

To address the issue the judge took testimony from each of the two jurors, under oath.  While the judge concluded there were premature deliberations he declined to excuse the whole panel or either of the two jurors.  The jurors agreed not to have further discussions and also to keep an open mind.  The Eighth disagreed there were premature deliberations.  And in context of the overall trial there was no prejudicial effect on the right to a fair trial.  Essentially the evidence was insufficient on the issue.  But that doesn’t mean there would have been no meritorious issue if the evidence showed more, especially expressions of actual opinion on guilty or innocence.

So a caution for military judges as they go through the common preliminary instructions to members.  The Eighth found the trial judge’s actions effective to address the issue.  A different result maybe if the trial judge had done nothing?

Friend Christian Capece liked a post on Linked-In

“The most dangerous phrase is, “we’ve always done it that way.””

That amused me because it immediately brought to mind United States v. Fosler.

And Fosler came to mind so readily because I was just discussing litigating issues with some younger counsel, and a question was, and often is – did you win it?  No, is often the answer.  But you the defense litigator should not take that as the final answer.  The law changes, see e.g., Fosler.  So, I recently continued an issue I have been raising for some years now – true without success.  But I think the Navy may have done something to help.

I have at times challenged how (by who) the Article 32, UCMJ officer is selected and appointed.  In some cases I have challenged the IO on the basis of that selection.  Well this week it just got more interesting.  I did a Navy 32.  I began my standard voir dire and developed what I needed – I thought – and challenged the IO.  While we were discussing this with the SJA on the record, and then waiting for a AA decision and new “fact” arose.  The IO is a member of a Reserve unit, that as I understood the evidence (discovery to come) is there “to support the RLSO,” or words to that effect.  Bingo, it seems as best I can tell at the moment that this is a RLSO unit.  Now, let’s see, the RLSO is now the prosecuting officer and provides the prosecutors.  The RLSO Reserve unit is “part” of the active duty RLSO.  Didn’t the AA just appoint a member of the RLSO as IO?  Well I’ll let you know, more discovery to come, etc.  I’ll need the mission statement for the reserve unit to see how it is incestuously intertwined, or inextricably intertwined, or . . .  with the RLSO, and go for a new 32.

Perhaps the Pres. should go with the proposal to have IO’s appointed to a panel maintained by the Circuit trial judiciary and appointed from and by the trial judiciary.  That allows for some independence and certainly a perception of independence.  So, back to my teaching point.

First the trial defense counsel has to find the issue.

Then the trial defense counsel has to raise and litigate the issue, or preserve it on the record.

Then appellate counsel have to raise the issue.

You may well lose the first, second, and subsequent times.  Here’s the real point, keep raising the issue.  It may take several cases and several years before the judge grants on that type of issue, or the appellate courts deal with it, and the appellate courts deal with the issue in the defense favor.

At trial you must represent the individual client, not necessarily a particular issue.  I agree.  But there is no reason you can’t raise issues in each case.  You are allowed to and in fact are ethically encouraged to keep raising issues.  How you go about that is a different point.

Make the trial counsel regret having always done it that way.

Cronin v. United States, __ F.3d ___ (Fed. Cir. Aug. 28, 2014), deals with claims for injuries sustained during or aggravated by conditions of service.  It is noteworthy to me because, among a number of significant claims of physical injury, the plaitiff raises issues of PTSD for which she was not to be compensated.  She attributes the PTSD partly to, multiple physical and sexual assaults, stalking, and extreme sexual harassment.

The Court of Claims found the PTSD claim without merit, and the appeals court affirmed.

For some time now each of the Services have been undergoing a draw-down.

Naturally, you would think that they would cut those with significant misconduct or performance issues, and that there should be any number who would fit into that category.

Here is an interesting piece about some of the reasons most Army majors have been let go.

It’s all about evals (and timing I would say), not racially motivated.

http://www.military.com/daily-news/2014/08/29/army-officer-firings-blamed-on-bad-evals-not-race.html?ESRC=eb.nl

Domestic violence is bad.  But I would suggest that the issue is normally only dealt with as a women’s issue.

This report should cause people to think – just a little bit – that men are not always the perpetrators, and that “alway believe the victim” – read the woman, training is flawed.

One-third of domestic violence victims in active-duty military families are men

“That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.”

 Bill Otis, Politics & Prosecution, a Toxic Brew, 16 August 2014.

I am not a libertarian, but I am one of the defense counsel and independent liberals Mr. Otis will frequently berate, sometimes with rather over the top hyperbole.  I read crimeandconsequences regularly because many posts raise important questions, but you have to take note of the style.  But on this toxic issue we are of the same mind; both as to the Perry prosecution issue and also the abuse of power.

When politics drives criminal (read military) justice policy, there is a great danger that people will not apply reason, ethics, and the law – politics and justice do not generally go hand-in-hand.

Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).

Haggerty was accused of defrauding Mayor Bloomberg.  During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.

For the military defense lawyer an immediate lesson is that the defense failed to object at trial.  When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error.  In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence.  But they were not raised on appeal so the court did not address them.  Trial defense counsel should not be dissuaded from objecting.  As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.

New York doesn’t have a Code of rules of evidence; but they do follow the federal rule of evidence as to best evidence found in FRE 1002.  That rule is the same as found in Military Rule of Evidence 1002, which is applied in a court-martial, prosecuted under the UCMJ.  Even though the New York court applied waiver and did not reach the issue Prof. Miller goes on to give his analysis. Prof. Miller concludes that the objection, if made should have been sustained. The issue was who owned the money in the trust – a central issue according to Prof. Miller.  The point here being what is the expected testimony about the contents of a trust document, and how can a uninvolved witness testify to those contents without introducing the trust document.

The prosecution argued that the language in the trust document was irrelevant to proving ownership of the funds.  Prof. Miller finds that the prosecution could not use [Military] rule of evidence 1004(d) to avoid the issue.  Prof. Miller then argues that the prosecution could not use the “independent knowledge” exception found in the best evidence rule.  As Prof. Miller points out, it would be impossible for the witness to independently know who owned the funds without the best evidence of the trust and the trust documents.

I have at times used the best evidence rule to object to hearsay testimony about the contents of documents, and even audio-video recordings.  So for example it would be, in my view improper for a CID, NCIS, OSI, CGIS, agent to testify about the contents of an audio at which she was not present during the recording.  This would be different to testifying about the actual interview of an accused, which was also recorded, or the ubiquitous pretext phone call in military sexual assault cases.  In the first scenario there is a hearsay and best evidence objection, in the second the agent was present and heard the statements, thus has knowledge independent of the video to testify about.  Another related issue would be something such as an email or text message.  The law enforcement agent can’t testify about the contents unless the sender or recipient.  You need a different witness who will also testify to authenticity. I would suggest that authenticity is a big deal in regard to emails and texts because of the ease with which they can be spoofed or spoiled (in the context of spoliation of evidence).

In United States v. Jones, 26 M.J. 197, 201 (C.M.A. 1988), the court noted that the military rules of evidence have broadened the scope of the best evidence rule.  This is actually good for both sides, as the court in Jones essentially found in finding defense evidence of a videotape improperly excluded.

I found United States v. Hernandez, NMCCA 200501599, 2007 CCA LEXIS 183 (N-M Ct. Crim. App. June 12, 2007)(unpub.), an interesting read generally.