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.

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.

 

 

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision.  This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective.  But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases.  The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

The victim’s] inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. As this Court recognized long ago, alcohol may affect a person’s memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten.

United States v. Grier, ARMY 9700651, 1998 CCA LEXIS 589, 19-20 (A.C.C.A. Dec. 11, 1998)(Johnston, J., dissenting).

It has been some time since I’ve had a case where it was necessary to have “cell tower” evidence to “locate” the client.

Here is an interesting piece in The New Yorker.

On May 28th, Lisa Marie Roberts, of Portland, Oregon, was released from prison after serving nine and a half years for a murder she didn’t commit. A key piece of overturned evidence was cell-phone records that allegedly put her at the scene.

In What Your Cell Phone Can’t Tell the Police, June 2014.

 

As many of you know, when CID/NCIS/OSI/CGIS starts an investigation into you they make a record.  The subject line is your name plus other information.  This is what is know as being “Titled.”

That information is submitted to NCIC as the equivalent of an arrest – even though you were not arrested, told you were arrested, or placed in custody.  The Titling, plus the taking of fingerprints and photographs gets you into the database, and you aren’t getting out for 40 years.

Here is a 2000 DoDIG report.

Here for comparison is Army Regulation 195-2, check Chapter 4.

Occasionally we have clients who have been able to correct the record or have it removed, but it is difficult and infrequent.

So among the various collateral consequences of being titled is banishment from the Global Entry Program.  If you are frequent traveler out of the country and want to expedite your return via Global Entry – think again if you have been titled in a military law enforcement investigation.

See here for the notice you might get: GOES Account Revocation 150221

It is routine for military prosecutors to overcharge in courts-martial.  They feel the more they can pile on the worse it makes the accused look.  So that’s why you might see a charge of murder along with a charge of spitting on the side-walk.

One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy.  The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago.  The case was tried in 2012, and the first stage of appeal was decided in February 2015.  The next stage is CAAF.

In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion.  The prosecution had it’s way in overcharging on this issue.  But that didn’t pass muster with the appeals court.  In ruling for the defense the court repeated basic principles.

Whether a single conspiracy or multiple conspiracies existed in a given circumstance is a question of fact determined by reference to the
totality of the circumstances. See United States v. Fields, 72 F.3d 1200, 1210 (5th Cir. 1996); 16 AM. JUR. 2D Conspiracy § 11 (2002).  As the
United States Supreme Court noted long ago, “the character and effect of a conspiracy [are] not to be judged by dismembering it and viewing
its separate parts, but only by looking at it as a whole.” United States v. Patten, 226 U.S. 525, 544 (1913).

58 M.J. 824, 826-27 (Army Ct. Crim. App. 2003) (footnote omitted); see also Braverman, 317 U.S. at 53 (1942) (“The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one”); Pereira, 53 M.J. at 184 (“A single agreement to commit multiple offenses ordinarily constitutes a single conspiracy.”).

The factors used to determine the number of conspiracies include: “(1) the objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of the charge and (4) the overt acts alleged in each; (5) the time and (6) location of each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8) the degree of interdependence between the alleged conspiracies.” Finlayson, 58 M.J. at 827.

 

 

 

 

 

Teaching point about SVC’s and how the defense may be able to use them to the benefit of the defense.

Not too long ago I had a SVC making oral argument on a MRE 412 motion.

During the course of the SVC presentation it occurred to me that she was representing facts AND statements of the complaining witness which were inconsistent with other statements of the complaining witness.

So, at the close of the hearing and before we moved on I asked the military judge for permission to use the in-court statements of the SVC on cross-examination as prior inconsistent statements, under the party-opponent rule in MRE 801.  To my shock, admittedly, the judge agreed.

It appears upon reflection that the SVC had been drinking the cool-aid, and did something no self-respecting defense counsel would do without some fact checking – the SVC “believed the victim.”  Having done so she created a problem for herself and her client.

What is the ethical obligation of an SVC who has a client who she knows lied on the witness stand?

What is the ethical obligation of an SVC who believes the client will lie on the witness stand.

Defense counsel go through this ethical quandary when their client prepares to testify.  And prosecutors should have the same concerns.  In fact, at this years VABar CLE the point was made that a prosecutor has an ethical obligation to speak up when he/she hears a government witness lie on the witness stand.

Anyway, back to the kool-aid.

As it happened for me I didn’t need to get into the issue of what was told the SVC, because on cross-examination the complaining witness admitted the facts.  That meant no need to present evidence of a prior inconsistent statement to her lawyer.

Q:  Did you do X?

A:  No.

Q: Are you sure?

A: I never did that.

Q: Prior to testifying today did you tell your lawyer you did X?

A: Yes.

Your done.

A: No.

This is where it can get interesting.  You can imagine the follow on questions, and the issue of whether or not you get to call the lawyer to answer that specific question.  Why not.  The SVC is an officer of the court, therefore you are entitled to have a good faith belief that the lawyer was told X by the client.  And by saying that in open court has not the attorney-client privilege been waived as to that specific item and any other facts and circumstances raised by the SVC?  So even if you don’t have an MJ who will consider the statements those of a party opponent, there is still the fact that the complaining witness must have said that to the lawyer, etc., etc., etc.

Let’s take this another step.  If SVC’s and thus their client have effectively achieved the status of party opponent or a party to a court-martial, now what in terms of discovery?

In August 2012, I noted a decision made by the Canadian court.

Canada has ordered the deportation of a female soldier who fled the U.S. military in order to avoid the war in Iraq, officials said Thursday. [Army Times]

Now we have this:

More U.S. soldiers could be sent back for court martial on desertion charges

Eight U.S. soldiers who fled to Canada instead of serving in the Iraq War have recently been turned down by citizenship and immigration.

The Conservative government has been vocally opposed to granting war resisters refugee or permanent residence status, but the group is not without support.

Parliament passed a motion in 2008 calling on the government to create a program that would allow conscientious objectors to apply for permanent resident status and cease any removal or deportation actions against them. The motion passed a second time a year later, but the government never took action.

And in 2010, Bill C-440, a private member’s bill that would have allowed U.S. war resisters to stay in Canada was defeated by only seven votes on its second reading.

What about Rivera?

She was deported from Canada in 2012 and turned herself in at the border, where she was detained and transferred to the custody of the U.S. army.

Rivera plead guilty to desertion, a plea deal that meant she would serve 10 months instead of 14 months in a U.S. military jail in California, far away from her husband and four children, who were living in Texas. Pregnant, she was denied early release and gave birth in jail.

“Some who have been quiet have received little if any jail time at all,” says James Branum, her U.S. lawyer. “Those who have spoken out the most have been singled out for the worst sentences.”

At her trial, prosecutors had a collection of articles from the press that were presented as evidence.

In this day and age you’d wonder why all appellate decisions are not “published.”  Many of not all are available either to lawyers through a research service or the general public through court websites.  So what’s going on; some attention is being paid to the topic of unpublished opinions.

For the non-lawyer it is important to know, whether or not you understand it, that only “published” opinions are binding precedent on the lower courts, and a matter of stare decisis for appellate courts.

PrawfsBlawg reports:

A couple weeks ago, Justice Thomas, joined by Justice Scalia, issued a dissent from denial of cert in Plumley v. Austin, a criminal justice case. In the main, Thomas’s opinion argued that the decision below was wrong on the merits and conflicted with other circuit decisions. But, in a passage that has sparked some debate, Thomas also argued that the Fourth Circuit below had erred in declining to publish its opinion, allegedly in order to “avoid creating binding law for the Circuit.” Thomas’s opinion may be a signal about circuit publication practices and, more specifically, about the proper direction of future Fourth Circuit jurisprudence.

Here is a piece from The New York Times, same subject.  Courts Write Decisions That Elude Long View.

Volokh Conspiracy has some stats.

No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 20201300341.  Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

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.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 2, 2015.