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.

Military and civilian counsel military cases is bound by Service rules of professional responsibility as well as their bar.  The military RPC are based on the ABA Model Rules.  Thus, ABA interpretations can be meaningful and helpful.

What do you do with the client file when the case is over?

This past July, the ABA  Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471 Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled

In this opinion, the committee considered the types of materials in client files that lawyers must return to clients at the conclusion of the representation.

The committee had not addressed this topic since the issuance of Informal Opinion 1376 in 1977 Files in Possession of Trademark Counsel Pertaining to Trademark of a Client.

See more here.

Several relevant items for you this weekend.

Orin Kerr has this post at The Volokh Conspiracy. In part:

Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original.

This two-step procedure raises an interesting puzzle for consent doctrine. What happens if a target consents to a computer search, the agents quickly make a copy, and then the target revokes consent before the image is searched? Everyone agrees that the officer can’t search the target’s own computer after consent was withdrawn. But can the officer search the copy? Is the copy now the government’s to search regardless of the suspect’s revocation, or should the revocation of consent cover both the original and the copy?

h/t CrimProfBlog.

This is not an uncommon situation in military cases.  I suspect we all have cases where the computer is taken and imaged, and then we send in a notice of representation and notice of withdrawal of consent.

And see also, Edward J. Imwinkelried (University of California, Davis – School of Law) has posted The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence IProceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming) on SSRN.

 

The NMCCA has issued an interesting published opinion on a government appeal.

United States v. Rios.  From the opinion.

  • The appellee is currently facing trial by special court-martial on numerous charges regarding larceny from the Marine Corps Exchange (MCX) on Camp Pendleton, California.
  • He is alleged to have conspired with his wife to commit larceny[.]
  • Among the evidence the Government seeks to offer to prove the appellant’s guilt is Mrs. Rios’ testimony regarding her husband’s involvement in the purportedly criminal activity. Mrs. Rios’ attorney, however, informed the military judge that his client intends to invoke her privilege (spousal incapacity) under MILITARY RULE OF EVIDENCE 504(a), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.).
  • The Government sought a preliminary ruling on whether the appellee’s wife could be compelled to testify under the exception found in MIL. R. EVID. 504(c)(2)(D). The military judge ruled that the appellee’s wife may validly invoke the privilege under MIL. R. EVID. 504(a), and that the exception found at MIL. R. EVID. 504(c)(2)(D) in no way limits that invocation.
  • The Government now appeals that ruling under Article 62, UCMJ. We have thoroughly reviewed the record of trial and the briefs submitted by the parties. Following that review and our consideration of all the materials before us, we conclude that the appeal is properly before us and find no error in the military judge’s findings of fact and conclusions of law.

Interestingly the opinion does not address the wife’s Fifth Amendment privilege or immunity.  Perhaps that was not an issue at the time.

I posted the other day about Latorre v. FCI Elkton.

A colleague who’s thoughts I value very highly had some things to say.

  • Unfortunately LaTorrehandled his matter pro se and didn’t do it well, and so, got the “canned” decision that circulated some years back out of the federal judicial center.
  • Just as unfortunate, it is fundamentally flawed.  First, the plain statutory language does not justify the cramped review it affords. Second, Burns is more-or-less irrelevant in that it was a pre-UCMJ case, where there was at that time, no “civilian” court review of military convictions. Finally, the “bad law” that comes out of the Tenth Circuit, is primarily rubber-stamping the decisions of a senior judge, who personally handles all of the DB cases, and totally ignores the shift in SCOTUS jurisprudence brought on by INS v. St. Cyr, and Boudemiene – in that if there is a GTMO detainee or someone being deported and held by the Executive Branch, that person is entitled to a full-blown habeas process.
  • If there’s no basis to deny habeas consideration to GTMO detainees, then why should not a member of the US military incarcerated via a court-martial, get the same consideration.  This last point fits with my added reference to a lack of direct access to the Supreme Court when CAAF denies a peition.

Worth-the-read is A PRELIMINARY DRAFT OF Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence, is the source for the ABA article I just posted about ancient documents.

There is another proposal in the Draft relevant to technology.  The drafters are suggesting changing FRE 902, which as we know will likely change MRE 902 18 months later (absent action from the Prez.).

902 (13) Certified Records Generated by an Electronic Process or System.  A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

902(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital 10 identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

This is worth-some-study.  On the surface, it may well be an appropriate rule appropriately limited.  My concern is abuse by prosecutors–more likely witnesses–when it comes to certain types of evidence.  I’m sure we are all aware of the free software programs downloadable to your cell phone which allow the creation of fake texts, emails, twits, and such.

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.

The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.

A committee report (PDF) said the rule “has always been questionable” but it has been tolerated because it is infrequently used, and usually in cases where there is no other evidence on point.

Now, the abundance of electronic documents creates a strong likelihood that the ancient documents exception will be used much more frequently in coming years, according to the report by U.S. District Judge William Sessions III of Vermont, who chairs the advisory committee on evidence rules.

“Many forms of [electronically stored evidence] have just become or are about to become more than 20 years old, and there is a real risk that substantial amounts of unreliable ESI will be stockpiled and subject to essentially automatic admissibility under the existing exception,” the report said.

From the ABA Journal, which 20 years from now will automatically be admissible as evidence, absent a rule change.

Some may remember United States v. Latorre, No. ACM 34670 (A.F. Ct. Crim. App. 3 April, 2002), 64 M.J. 80 (C.A.A.F. 2006).

The case had something of a tortured appellate history, ultimately leading to a habeas corpus petition in federal court.  See Background, at p.1.

Like the mythical Phoenix, Latorre sought to get some lift from the U.S. District Ct. for the Northern District of Ohio, in Latorre v. FCI Elkton.[1]

In Ehlers v. Warden, [1] the court sets out the common understanding of federal review of a court-martial.

“[T]he scope of a habeas corpus review of a military conviction is more narrow than a habeas corpus review of a conviction by a civil court.” Swisher v. United States,354 F.2d 472, 475 (8th Cir. 1966). “In military habeas corpus cases, . . . it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings—of the fair determinations of the military tribunals after all military remedies have been exhausted.” Burns, 346 U.S. at 142. Therefore, it is not the duty of the civil courts to re-examine and re-weigh each item of evidence or events which tend to prove or disprove one of the allegations in the applications for habeas corpus. Id. at 144. “It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims.” Id. In other words, federal civil courts “must defer to the decision of the military court if that court has given fair consideration to the claims advanced in the habeas petition.”Gilliam v. Bureau of Prisons, No. 99-1222, 2000 WL 268491, at *2 (8th Cir. Mar. 10, 2000) (citing Burns, 346 U.S. at 142-44). “[W]here an issue is adequately briefed and argued before the military courts the issue has been given fair consideration, even if the military court disposes of the issue summarily.” Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010) (quoting Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003)).

The Dist. Ct. finds that, “In his Petition, he asserts that his trial [defense] counsel [2] was ineffective during sentencing because he produced only written statements from mitigation witnesses but would not call them to testify. He claims this led to an unfairly long sentence. For the reasons set forth below, the Petition is denied and this action is dismissed.”  Of interest in the court’s opinion is this observation.

While “full and fair consideration” is the universal standard for military habeas petitions, the Federal Circuits have not developed a uniform analysis to determine what constitutes “full and fair consideration” by the military courts.

After a review of cases the court went on to suggest that:

In Lips [Lips v. Commandant, 907 F.2d 808  (10th Cir. 1993)], the Tenth Circuit applied a four-part test to help determine whether the federal court may consider the merits of a military habeas case. See Lips, 997 F.2d at 811.See also Dodson v. Zelez, 917 F.2d 125, 1252-53 (10th Cir. 1990) (adopting the four-part test from the Fifth Circuit’s opinion in Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert. denied, 425 U.S. 911 (1976)); see also Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir. 2003) (clarifying that the four-part test is meant to aid courts in applying Burns rather than serve as a separate hurdle to be met before review of a military court decision). In the Tenth Circuit, before reaching the merits of any claim, the federal habeas court must consider four factors:

(1) the asserted error is of substantial constitutional dimension;

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The problem is that the CCA’s don’t do that enough.  But at least they have the power.

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

As the gubmint’s oft-stated “it’s too hard” argument CAAF said:

As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be assembled and informed of the facts. 10 C.M.A. at 299, 27 C.M.R. at 373. However, a process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.

Along with deciding the issue, CAAF made a couple of comments interesting to those students of CAAF’s stare decisis belief.

  • We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
  • Legislative history does not support overruling.
  • A long supportive history following the case sought to be overruled and thus an argument for consistency.  But, one asks, what about Fosler?
  • The Supreme Court has held that stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. at 231. As noted, the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow.  (Fosler anyone?)
  • (Note from the two dissenting judges)  The fundamental error in the court’s analysis was in according the policy of stare decisis an aspect of flexibility that it does not have. A precedent-making decision may be overruled by the court that made it or by a court of a higher rank. That discretion, however, does not reside in a court of a lower rank. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)

The Supremes anyone?

 

Amici are former federal prosecutors and senior Justice Department and government officials who have dedicated many years of service to the criminal justice system and have a continuing interest in preserving the fair and effective administration of criminal trials.2 As such, amici understand the duty of prosecutors “to seek justice within the bounds of the law, not merely to convict.” ABA Standards for Criminal Justice: Prosecution and Defense Function, Standard 3-1.2(c) (4th ed. 2015). Amici write to emphasize that fundamental to vindicating this responsibility is making timely disclosure of all material and favorable evidence to the defense.

As the Supreme Court recognized in Brady v. Maryland, the failure to disclose favorable evidence “violates due process … irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87 (1963); see also United States v. Nixon, 418 U.S. 683, 709 (1974) (“The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.”). While this affirmative duty is above and beyond the demands of the “pure adversary model,” United States v. Bagley, 473 U.S. 667, 675 n.6 (1985), it is grounded in an understanding of the prosecutor’s “‘special role … in the search for truth in criminal trial,’” Banks v. Dretke, 540 U.S. 668, 696 (2004). From their years of combined experience, amici appreciate the challenging judgment calls prosecutors face on a daily basis, but they also deeply believe that fundamental fairness and public confidence in our justice system relies on prosecutors taking their disclosure obligations seriously and fulfilling this duty capaciously.

So begins the amicus pleading in support of the petitioner in Georgiou v. United States.

Sixty years after Congress created the UCMJ to protect accused servicemembers from abusive and arbitrary punishment, a significant faction in Congress now believes it must be almost completely dismantled and restructured because is is not being used aggressively enough. Multiple federal organizations and a fair number of outside parties consider the notion of due process in student disciplinary hearings, the result of courage in the civil rights era, as an obstacle to be overcome or circumvented in the name of “accountability.” The federal government has used its formidable authority to shape institutional responses to sexual assault, but the aggressive rush to “fix” the problem subordinates notions of due process, truth-seeking, and even the presumption of innocence. Fueled by an underlying assumption that too few perpetrators are sufficiently punished, the poignant and emotionally-charged environment of sexual assault threatens otherwise broadly accepted principles of justice. And in that setting, it is difficult for anyone in a position of both power and publicity to argue for policies that will be seen as making it harder to punish rapists. Nonetheless, the “obligation to govern impartially is as compelling as [the] obligation to govern at all.”[1]

MAJOR ROBERT E. MURDOUGH, BARRACKS, DORMITORIES, AND CAPITOL HILL: FINDING JUSTICE IN THE DIVERGENT POLITICS OF MILITARY AND COLLEGE SEXUAL ASSAULT.  223 MIL. L. REV. 233 (2015).

[1] Berger v. United States, 295 U.S. 78, 88 (1935).