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.

On 28 January 2015, DoD issued an instruction (DODI 1304.33) protecting against inappropriate relationships during recruiting and entry level training.

Paragraph 1.a.(1)(k) of Enclosure (3) of this instruction expressly prohibits recruiters and trainers providing entry level training from soliciting donations from a recruit or trainee.

Apparently there have been questions concerning the impact of this instruction on various fund drives such as the NMCRS Active Duty Fund Drive (ADFD), and the Combined Federal Campaign.

Apparently guidance is coming out to clarify, that “the sole impact of the instruction on the ADFD or other authorized fundraising is that, even if soliciting donations is otherwise permitted, any such solicitation directed to a recruit or trainee must come from someone other than the recruiter or trainer directly responsible for providing the entry-level training. Therefore others in the command who aren’t in such a position may still fundraise where permitted (see, JER 3-210 and 3-211).”

I have used the word “apparently” because I have not seen any guidance.  What I am alerting you to is that if there is a question raised or a complaint made, check with the command ethics advisor.

h/t WSA.

I am for (and against) the SVC program.  I am mostly for it because it is necessary.  Over the years and prior to the Air Force start there were regulations in place that required the trial counsel to inform the “victim” of what was happening in the case and get their input.  The trial counsel were not doing the job and in some instances deliberately refused to follow the guidance.  By example, a trial counsel who refuses to let the complaining witness know about pretrial negotiations, and who got upset when I gave the CW a copy of the pretrial agreement offer.  Which leads to two reasons I’m not necessarily in favor of the SVC program.

Because the trial counsel routinely failed in their requirements, I got in the habit of asking the CW during my interview if they “knew what was going on?”  They’d say “no, not really.”  I would then take the opportunity to tell them what was going on.  I would tell them that I was the defense counsel telling them this and they are welcome to confirm with the trial counsel.  At that moment the interview had some lessened tension.  In several cases I’m convinced that my “helping” the CW understand what was going caused her to modulate anger against my client and it may have helped later.  So now that’s a lost opportunity.

I do have some concerns about the potential for SVC’s exceeding the scope of their responsibility to their client and the court.  Whether or not those concerns are supported will be open to discussion for some time to come.  There is a potential concern for coaching as opposed to preparing a CW for testimony.  Trial and defense counsel prepare but don’t (shouldn’t) coach a witness.  It’s perfectly proper to prepare for testifying.  In one particular case I was concerned about a SVC who objected to questions unrelated to MRE 412 or 513 during an Article 32.  That’s not their place or responsibility.

So I’m not sure the SVC program is in crisis.  Are there modifications and clarifications that need to be made – yes.  Are there some serious ethical issues to be resolved – yes.  The biggest ethical questions that must be resolved include:

What is the SVC required to do under the following situations?

  • The CW tells them something significantly contradictory to their statements to law enforcement or at a 32.
  • The CW tells the SVC about information that if known to the trial counsel must be discovered under the Brady-trilogy.  Is the CW sufficiently a party as the rules and practice seem to have constructed, that there is a discovery obligation.
  • The SVC observes the CW make a statement on the witness stand which the SVC knows or reasonably believes to be false.  Can the SVC condone such behavior and remain silent, or is there some ameliorative action the SVC is required to take in the interest of justice and as an officer of the court.  Note, this is similar, very similar to issues faced by a defense counsel.  Defense counsel get training on these issues and there is a fairly robust amount of case-law and discussion of counsel responsibility.

I would encourage the Services to jointly consider addressing these questions in their rules of professional responsibility.

The question of a crisis was raised in this blog post at CAAFLog.

 The investigation is centered on allegations that an SVC instructed a victim she was advising in an active sexual assault case to destroy information on a personal cellphone that was relevant to the case, but may have reflected negatively on the victim, according to several sources in the Marine Corps’ legal community who are familiar with the case.

I doubt the attorney advised the client to destroy evidence or potential evidence.  If there is a concern it likely lies elsewhere.  Is the CW blaming it on her lawyer?  Talk to a defense counsel about how it is not uncommon to have the client blame them for something, especially after trial, where there is no blame.  The media report notes: “Victims’ legal counsel attorneys have been known to push for a case to go to trial against the recommendations of the prosecutor, the official said, and make demands that have no legal precedent or hold up a trial.”

  • Expressing the CW’s desire is not improper.
  • Seeking to create new legal precedent is not improper, that’s what defense counsel argue for all the time.

To the extent this program is a hydra-headed problem, blame Congress and the leadership.  Now, here is my additional thought on the underlying issue in the media report.

In almost all sexual assault cases I’ve dealt with over the last 7-8 years, text messages, FB messages, emails, and other social media communications have played a significant part in the case.  Law enforcement seems to routinely cherry-pick, often with the help of the CW what “evidence” they will preserve.  They almost never take a forensic mirror image of the cellphone for example.  This in my view is a failure to investigate and direct evidence of confirmation bias in work.

There is no reason law enforcement cannot take a forensic mirror image of the phone and then preserve it as evidence, without actually conducting an examination.  Should the image become relevant, then the parties can get the judge to order a DFE if appropriate.  This respects the CW’s privacy while at the same time preserving potential evidence at trial, and avoiding allegations of evidence spoliation.  I would have thought prosecutors and SVC’s would have been all for it—they avoid the attack on the CW’s credibility!  Duh!!!

I say this with the following experiences in now my last eight cases.  In each case but one, the CW was allowed, with CID assistance to pick the texts to “preserve” through a screen print or photo of the screen.  In six cases the CID did not take a forensic image of the cellphone.  In five of the eight cases the cellphone became unavailable after the investigation was closed and before the 32 and our request for preservation or production of a DFE.  Two were “dropped,” broken and needed to be traded, two others were dropped in the bathtub, and needed to be traded, and one was traded (in this case the witness never told CID or the prosecutor).  So, I am concerned.  Is there a pattern?  Are the CW’s being told to “lose” their texts or phones?  If this in fact presents a suspicious pattern who is doing the telling.  Not the SVC, least I don’t think so.  That would be extraordinarily stupid.  I don’t think it’s law enforcement.  Despite concerns of competence, I think this unlikely.  That leaves Victim Advocates, SARC’s, and others sufficiently knowledgeable to make such a “recommendation.”

So, is there a conspiracy or a theory.  Not sure yet.  But, here is a non-conspiracy theory thought on what may be happening.  (And this comes from thinking about the ‘one drink’ canard.)

I am thinking that it may be the result of VA’s and SARC’s advising CW’s about privacy.  Somewhere in that process it is coming out as lose your phone, delete private messages, hide private messages.  Something along those lines.  That morphs in the CW’s mind.  It’s kinda like the not-what-you-said-but-what-they-think-you-said.

So what I’m thinking is someone needs to do some really clear, direct, and hands-on training or retraining with VA’s and SARC’s.  Law enforcement needs to routinely image the phone, but not examine it without written consent.  The CW needs to know that they are subject to adverse action for destroying potential evidence, and that’s what a cellphone is.

To finalize, let me give you some entertainment on my mind.

  • I have a video of a CW interview.  The CW is accompanied by a VA chief warrant officer.  During the interview the CID agent steps out.  You can then see and hear the VA telling the CW what she needs to be telling about.  On review it’s somewhat innocuous so I decided not to use that at trial.  The funny part is that after about five minutes the CID agent opened the door and motions the VA over.  You can then see the agent talking to the VA and the VA then turns several times to look up at the camera.  Hello, you’re on candid camera.
  • I have videos of CID conducting three interviews, two with the military SVC present.  The third has the civilian and military SVC on it.  Again the CID agent leaves the room.  Hello you are on candid camera giving your client advice.  In the first two military SVC interviews there are several places where the audience can see and hear the advice being given.  In the third they are just gossiping.  I decided not to bring this up at the 32, and maybe won’t at trial.  But let me ask, is that a waiver of the attorney-client privilege.

A couple of items have come across the transom today which are worth the read to military practitioners.

James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, Fed. Sentencing Rep. Dec. 2014, at 72-87.  This items comes from the current Chief Judge, the Court of Appeals for the Armed Forces.  His term of office will expire shortly, but the name of a new judge is not yet published.  By tradition, the next senior judge will fleet up to become the chief judge.

 

Col Robert F. Holland, USA, JA (Ret), Unique Procedural Aspects of Court-Martial Sentencing by Jury (sic), 27 Fed. Sentencing Rep., No. 2, Dec. 2014.

When [persnonnel] hear nothing but one side of controversial issues for their entire time[], what you have is not true education but Maoist indoctrination in the guise of education.  When the academic consensus on any issue with political overtones can be predicted with 100% certainty merely by identifying the Politically Correct position, the consensus no longer means anything.

The state of legal scholarship

There is a conflict of opinion concerning the authority of this Court to reassess sentences. The language of Article 66(c), UCMJ, its legislative history, and the decision of the Supreme Court in Jackson v. Taylor, 353 U.S. 569, 1 L. Ed. 2d 1045, 77 S. Ct. 1027 (1957), give this Court the responsibility and unfettered authority to reassess a sentence, even after modifying the approved findings. On the other hand, our superior court holds that the service courts may only reassess a sentence after a finding of prejudicial error if the court was convinced that the sentence, as reassessed, is not greater than the sentence that the original court-martial would have imposed. United States v. Eversole, 53 M.J. 132 (2000); [11]  United States v. Taylor, 47 M.J. 322, 325 (1997); United States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). In United States v. Sills, 56 M.J. 556, 571 (A.F. Ct. Crim. App. 2001), set aside on other grounds, No. 02-0048/AF (15 Jan 2002), we analyzed these conflicting precedents, and HN8 concluded we are bound by the will of Congress and the decision of the Supreme Court. While the Manual for Courts-Martial gives this Court the authority to order a new hearing on sentence, it does not require us to do so. R.C.M. 810(a)(2) and 1203(c)(2).

United States v. Roper, 2002 CCA LEXIS 24, 10-11, 2002 WL 169256 (A.F.C.C.A. Jan. 24, 2002).

In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014),[1] No. 15-0347/MC. CCA 201300341, (C.A.A.F. 30 January 2015),[2] the Judge Advocate General certified the following issue to the Court of Appeals for the Armed Forces (CAAF).

WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.

In Jackson v. Taylor, 353 U.S. 569 (1957),[3] the appellant sought to require an order for a rehearing on sentence in his case.  After a thorough review of the relevant statutes and law, the court held that rehearings on sentence are not authorized.

In United States v. Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959), the then Court of Military Appeals, determined that a Service appellate court could continue to order rehearings on sentence.  This is error in contradiction to the higher court’s holding in Jackson v. Taylor.  The Service courts and the CAAF have continued to follow Miller.  In trilogy of significant cases the CAAF has sought to set out criteria and the boundaries on how the Service courts exercise their “discretion” to order a rehearing rather than reassess the sentence themselves.  The first significant case after Miller is the well-known case of United States v. Sales, 22 M.J. 305 (C.M.A. 1986).  The practice has continued uninterrupted since 1958, almost 60 years.

 Although Jackson conclusively established the review boards’ authority to reassess sentences in appropriate cases, in light of certain dicta in Jackson, a certain amount of confusion arose as to the authority of the boards of review to order a rehearing on the sentence alone.6Link to the text of the note However, what confusion that might have arisen as a result of the dicta in Jackson was resolved by this Court in United States v. Miller, 10 C.M.A. 296, 27 C.M.R. 370 (1959). The Miller court discussed Jackson and reaffirmed that “a rehearing limited to sentence alone may be an appropriate and permissive remedy for the cure of errors not affecting findings.” 10 C.M.A. at 299, 27 C.M.R. at 373. This consistent practice has stood since 1959 without legislative amendment by Congress.

United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 2013).  But:

 The statement in Jackson that there was no authority in the Uniform Code for a rehearing on sentence alone is neither confusing nor a mere dictum. 353 U.S. at 579. It is a core holding that this Court is required to follow.

Id. at 17 (Stucky, J., concurring in the result).  And:

 I agree with Judge Stucky that the Jackson v. Taylor language about “rehearing on sentence alone is neither confusing nor a mere dictum,” United States v. Winckelmann,     M.J.    ,     (3) (C.A.A.F. 2013) (Stucky, [18]  J., concurring in the result), but a binding Supreme Court determination that: (1) the Uniform Code of Military Justice (UCMJ) does not provide for the Court of Criminal Appeals (CCA) to remand for a rehearing on sentence alone; and (2) Congress chose the process of sentence reassessment by the CCA after the CCA disapproves a finding, where a rehearing on that finding was not ordered. 353 U.S. 569, 579-80, 77 S. Ct. 1027, 1 L. Ed. 2d 1045 (1957). But while the Supreme Court in Jackson appeared to hold squarely that rehearing on sentence alone was not a legally available option for the CCA, United States v. Miller, 10 C.M.A. 296, 299, 27 C.M.R. 370, 373 (1959), nonetheless, and inexplicably, held precisely to the contrary (“[T]he literal but entirely unreasonable construction of Article 66(d), supra, can easily be avoided merely by substituting ‘or’ for ‘and,'” to construe the statute as stating “‘findings or sentence.'”), precedent the majority follows in addressing the question before us.

Id. at 17-18 (Ryan, J., concurring in the result).

In the process the CAAF has issued more robust guidance to the Service courts.  See United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006); United States v. Winckelmann.

An argument could be made that the failure of Congress to amend the rules is an act of approval of the current practice.  However, this conflicts with how the Supreme Court views Congressional silence.  See Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

Here is my personal recommendation on how to deal with sentence reassessment on appeal.  Amend Article 66(c), to add the following.

  • In all cases in which the accused pleads guilty, and the sentence is imposed by a military judge,the court of criminal appeals shall reassess the sentence where sentence reassessment is considered appropriate.
  • In all cases which the accused pleads not guilty, and the trial is by a military judge,the court of criminal appeals shall reassess the sentence where sentence reassessment is considered appropriate.
  • In all cases in which members have adjudged the sentence, the court of criminal appeals may in its discretion order a sentence rehearing.  When considering whether to order a rehearing and in reassessing, the court of criminal appeals shall, at a minimum, consider the criteria already set forth in the Sales-Moffeit-Winckelmann trilogy.

[1] http://www.jag.navy.mil/courts/documents/archive/2014/QUICK-201300341-OP.pdf

[2] http://www.armfor.uscourts.gov/newcaaf/journal/2015Jrnl/2015Jan.htm

[3] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=353&invol=569

The Navy-Marine Corps Court of Criminal Appeals recently, in United States v. D.W.B., __ M.J. ___ (N-M Ct. Crim. App. 2015), had to decide “a complex and controversial topic: the admissibility of a witness’s testimony regarding memories recovered through a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR).”  Slip op. at 2.

BLUF:  the military judge did not abuse his discretion in concluding that KB’s testimony was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.

In Coker v. Georgia, 433 U. S. 584 (1977), the Supreme Court held that the Eighth Amendment bars the use of the death penalty as punishment for the rape of an adult woman, where there is no homicide.  The question was left open about a non-homicide rape of a child.

In Kennedy v. Louisiana the court had the opportunity to address the issue of a non-homicide child-rape.  The court held, that like the rape of an adult, a rape of a child cannot be punished by death.  While doing so, the court had this to say about child witnesses.

 There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. Atkins [Atkins v. Virginia536 U. S. 304 (2002)] at 321. See also Brief for National Association of Criminal Defense Lawyers et al.as Amici Curiae 5–17.  Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is “strong evidence that children, especially young children, are suggestible to a significant degree—even on abuse-related questions”); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children’s True and False Reports of Body Touch, 12 Child Maltreatment 60, 61–66 (2007) (finding that 4- to 7-year-olds “were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview”).

Kennedy v. Louisiana, 554 U.S. 407 (2008).

The issue of false memory and false memory syndrome has been raised in connection with Russell Strand’s “new” approach to interviewing sexual assault complainants.  He calls it the Forensic Experiential Trauma Interview (FETI).

Here are some helpful links to professional policies relevant to recovered memory.

Observer Media asks:

When will they ever learn? Ninth Circuit Judge Alex Kozinski declared months ago in a much-quoted opinion that there is “an epidemic of Brady violations abroad in the land.” And yet, prosecutors continue to deny there’s a problem. Indeed, the Department of Justice gets outright indignant at the suggestion, and so do many state court prosecutors. They bristle at the very mention of the possibility.

But here’s another doozy: The People (of California) v. Efrain Velasco-Palacios. In this unpublished opinion from the Fifth Appellate District, the California Court of Appeal reveals that state prosecutors and California Attorney General Kamala Harris continue to be part of the problem. Kern County prosecutor Robert Murray committed “outrageous government misconduct.” Ms. Harris and her staff defended the indefensible—California State prosecutor Murray flat out falsified a transcript of a defendant’s confession.

Kern County prosecutor Robert Murray added two lines of transcript to “evidence” that the defendant confessed to an even more egregious offense than that with which he had been charged—the already hideous offense of molesting a child. With the two sentences that state’s attorney Murray perjuriously added, Murray was able to threaten charges that carried a term of life in prison.

Prosecutor Murray had ample time and opportunity to correct his lies and his falsification of the transcript, but instead, he let it go until defense counsel had encouraged his client to plead guilty based on this fabricated evidence. Not until after defense counsel requested the original tape recording from which the transcript was made did Mr. Murray admit that he had added the most incriminating statements to the transcript.

This is why broad and open discovery is necessary.  When prosecutors (and investigators) believe that anything goes to put a person in jail, issues like this happen.  I agree with the sentiment that most prosecutors and investigators don’t do this stuff.  But unfortunately it happens enough that you have to be vigilant.

Check out this piece.

I have signed up for the annual seminar of the Center for Prosecutor Integrity, Innocence Summit.  An interesting agenda.

Unusual for me, but I did a guilty plea case this week.

Going in to the case and throughout the case the client was accused of a lot of offenses, some of which were a course of conduct over a period of time.  Not unusual, right, so we had some right and left dates.

So, you are dealing with a government that takes the view you plead to this – X Y Z – or no deal.  You get to the point where you say fine.  You and the client take the deal.

I always find it interesting when you get to that point in the providency inquiry on this type of specification and the client says that, “I did this, but only up until a date X.”  So now we’ve got a problem.  The MJ knows but he asks the client why only up until date X, to which the client responds, “I was put in pretrial confinement on date X.”  Now we’ve got a real problem, have we busted the deal.  You have to wonder, especially when it got through the Article 32, IO, the same way with an accused sitting in front of the IO who is obviously in PTC.

So, I was reading United States v. Doshier today, which has in my view a much more serious problem of government lack of caring when charging.  This is a NG involving CP, which is a notorious situation where the government overcharges, or charges-without-caring.

While deliberating, the panel reviewed approximately six hundred images of alleged CP. The panel returned a general verdict finding appellant guilty of the specification as drafted: that is, of knowingly possessing over four hundred images and photographs of CP.

The Army CCA now has to do a review on appeal.  And here is what we find out (not sure if this is for the first time or not.  If it’s for the first time then it appears there was an issue with trial defense counsel as well.)
It is apparent from our review of the evidence that some of the images presented to the panel clearly do not constitute child pornography.
But wait, surely counsel, and possibly the MJ, viewed them before hand to ensure only admissibly and relevant evidence was being presented to the members?
The ACCA goes further:
As appellant notes in his brief, some images include depictions of a door, a sign, the back of someone’s head, fully-clothed children, children in bikinis, and images too small to determine their content.
[Side note of something I often raise is if the court and members can’t figure out,because of size, if it’s CP, how is the accused supposed to do that.  This is another reason why I also object to blow-ups and enhancements of alleged CP images-such blow ups are a deliberate misrepresentation of the evidence.]
 The ACCA goes on:
However, we  have reviewed every image and are convinced beyond any reasonable doubt that at least three hundred of these files constitute CP.
This is not just an issue of lack of caring is it.
What’s the ethical responsibility of a prosecutor here?  He/she represented to the members on the record that the government believed the images were all of CP.  Is that an ethical representation?  I suggest not, if as ACCA makes clear quite a few of these images are not borderline and subject to interpretation.
I have no doubt that had there been a PTA in this case it’s quite likely  that the government would have required the accused to plead guilty to the 400 plus language.  They would have done so knowing, or should have known that it is only 300.
Perhaps these prosecutors took the attitude of who cares 400-300-600 it’s all CP, etc., etc., etc.?  That’s a great rationalization and great extenuation and mitigation for the ethical error or the dereliction of duty.