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.

No. 15-0330/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE.

The decision of the Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of United States v.Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

If the vaunted FBI examiners can make errors, then surely the examiners at USACIL, DCFL, and similar “labs” can have problems.

One of the underlying issues may be that examinations for law enforcement purposes are not “blind.”  What do I mean by that?  Go back and look at a few examinations you’ve seen for your case recently.  When the samples are submitted for testing the field agent normally submits a statement or outline of the case.  Essentially, they are telling examiners the result they want–the evidence matches the suspect.  See comments here.  I know I talk about this frequently–the confirmation bias phenomenum–but here is my evidence Prof’s thoughts on how the manner in which samples are submitted, and tested, can lead to the potential for a flawed result.

Commentators have identified bias as a serious problem in the forensic setting. As one commentator noted: “To the extent that we are aware of our vulnerability to bias, we may be able to control it. In fact, a feature of good scientific practice is the institution of processes—such as blind testing, the use of precise measurements, standardized procedures, statistical analysis—that control for bias.” A 1996 National Academy of Sciences report on DNA testing recommended that laboratory procedures “be designed with safeguards to detect bias and to identify cases of true ambiguity. Potential ambiguities should be documented.

Keep in mind that internal quality assurance reviews do not solve this potential problem.  The incentives for the QA examiner are no different than the initial examiner.  Some of you may remember from quite some years ago the Brooks AF drug lab scandal.  This involved a blind negative sample submitted by AFIP, which was reported by the laboratory as positive for a controlled substance.  I remember a case where the female client’s sample was reported positive for a controlled substance.  It was not until the case reached an adsep board and we got “discovery” that we noticed that the testing data showed the presence of male DNA in the sample.  The government’s expert testified that the result was correct, but that it must have been contaminated somewhere in the collection and testing process.  Despite this the command persisted in going forward to a finding of no misconduct.

Here is a piece from Marc Green, about how these human factors mentioned above can affect the reliability of a forensic test result.  Whereas the FBI describes the handwriting methodology.  They have this interesting statement.

The FBI Laboratory has not established a specific number of “points” or characteristics needed to identify a questioned writing as having been prepared by a particular individual. In order for a forensic document examiner to identify an individual as having prepared a questioned writing, agreement must exist between significant characteristics in the questioned and known writing with no significant differences. The examiner must explain any exceptions.

Yes, there is a wide degree of subjectivity.  See here for a discussion of the points issue.  Prof. Jennifer Mnoonkin writes here on fingerprints.

The point here is that you yourself should not engage in your own blind confirmation bias–which is to accept without examination the findings of a forensic examination.  As several writers point out, there may be quite a bit of other evidence in your case which goes to prove the accused’s guilt, and that the forensic examination is merely icing on the cake.  But in close cases it’s worth a read to peel the onion on forensic tests and reports.  Certainly the research and questions about the reliability of forensic testing may well help lay a foundation for expert assistance.  There may be support for what it is the expert is going to do for the defense.

Under the “old” Article 32, the right to call and examine witnesses and to obtain production (discovery) of evidence was pretty robust.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing.  That audio could then be transcribed into a verbatim transcript.  The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

This was a reason I always wondered why the Air Force and Coast Guard didn’t record the 32.  Although the cynical thought was that it prevented the defense from having a record to use for impeachment.

But here is the question for the current Article 32 pretrial hearing.  Can the hearing be properly used as a substitute for a deposition, and testimony used in evidence should a witness become unavailable for trial.  I think the answer should be NO.  Largely I think this is because of the intent to avoid discovery and an appropriate amount of cross-examination of witnesses who did attend.  There is now almost no discovery and the ability to cross-examine witnesses who do appear is more limited.  Thus there is a strong constitutional argument that trying to use a transcript of Article 32 testimony violates the Sixth Amendment Confrontation Clause.

While the likelihood of needing prior testimony may not be a frequent event, there may come another day where this collateral impact of changing the Article 32 may come back to haunt.  On balance the intent to adversely affect the ability of the defense to prepare for and defend against a charge has been accomplished-but at a cost to a potential prosecution.

On today’s CAAF daily journal we find:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

  1. WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.
  1. WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY’S ACTION DID NOT APPROVE ONE.

Then Navy-Marine Corps Court said:

Here, after adequate investigation into the matter, trial defense counsel made a tactical decision not to call any of the potential character witnesses that the appellant suggested.  The tactical reasoning behind this decision was to avoid opening the door to potentially damaging evidence that the Government could offer in rebuttal. This tactical reasoning was reasonable and, as such, we agree with the conclusion of the DuBay judge that trial defense counsel was not deficient in failing to call sentencing witnesses.

Trial defense counsel also decided not to offer any military records documenting the appellant’s combat deployments.  Trial defense counsel again expressed concern that offering such evidence would do more harm than good by opening the door for rebuttal by the Government. With the benefit of hindsight, the tactical reasoning is questionable since it is unlikely that the Government could have effectively rebutted official military documentation of the appellant’s deployment history.

Interesting, because I just did a case where we argued for a Dismissal only (and got it).  And I’d had the discussion with military counsel about the Blunk letter we used to have in the old days.

In United States v Blunk we held that defense counsel “violates no legal or ethical principle in . . . following . . . instructions to present nothing on” the accused’s behalf which might influence the court-martial to reject a punitive discharge as an appropriate punishment.

United States v. Weatherford, 19 U.S.C.M.A. 424, 425, 42 C.M.R. 26, 27 (C.M.A. 1970).

Standard Blunk letters became the norm for a case–actually the few–cases of BCD Strikers.  See United States v Blunk, 17 USCMA 158, 160, 37 CMR 422 (1967).

Hence, we believe the better practice in any case is for counsel, if he desires to protect himself against later, unjustified attack, to secure a statement in writing from his client and retain the same in his possession. In event of the accused’s later disavowal of meaures for which he himself is responsible, it can be made available as evidence that the allegations are in fact false. And certainly we would not expect any appellate attorney, as an officer of the court, to level an attack on trial defense counsel without first making inquiry of their mutual client in order to ascertain the facts.

United States v. Blunk, 17 U.S.C.M.A. 158, 161, 37 C.M.R. 422, 425 (C.M.A. 1967).

I will say that we very quickly got away from BCD-Sriking, especially in MJA cases.  Too often the MJ would give the BCD, but was going to anyway, and also some hefty Brig time because the accused did not see the severity of the BCD.

[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.

United States v. Herrera,  __ F.3d ___ (10th Cir. 2015).

Marquette University Law School will host oral arguments for the court martial appeal of a U.S. Air Force sergeant accused of sexually assaulting two girls and endangering his baby son.

So says the Wisconsin Bar Journal.

Here is an link to a preview by a colleague.

I will be appearing along with Captain John Legg, USAF, as counsel for appellant.

You can access the briefs at CAAF here.  An audio of the argument will be available within a few days on the CAAF website.

The question is often asked of me–can we win on appeal, will the appellate courts give a fair hearing and review.

In United States v. Soto, the Air Force Court of Criminal Appeals (AFCCA) reviewed the factual sufficiency of appellant’s conviction for rape and any lesser included offenses.

  • A military judge accepted the appellant’s pleas of guilty to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery.
  • The military judge convicted the appellant of one specification of rape.
  • The military judge acquitted the appellant of two other specifications alleging aggravated sexual assault and wrongful sexual contact.
  • On appeal, the appellant challenged the factual sufficiency of the rape conviction and the sentence.
  • We find the appellant’s rape conviction factually insufficient.
  • The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court is “convinced of guilt beyond a reasonable doubt.”
  • In conducting this unique appellate role, we take “a fresh, impartial look at the evidence,” applying “neither a presumption of innocence nor a presumption of guilt” to “make [our] own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.”
  • A factual sufficiency determination is limited to a review of the “entire record,” limited only to evidence presented at trial.

As expected, the prosecution “appealed” the decision to the Court of Appeals for the Armed Forces (CAAF).  The following entry from CAAF’s daily journal 2 April indicates:

Appeals – Summary Dispositions

No. 15-0247/AF. U.S. v. Eddy C. Soto. CCA 338422. On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Dec. 19, 2014)), and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding Appellee’s rape conviction, and any lesser offense, factually insufficient. Accordingly, it is ordered that the certified questions are answered in the negative and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

This means that the CAAF affirmed AFCCA’s entry of the equivalent of a not guilty finding.  They will not be able to do a retrial.

This is just a recent example of a sexual assault case where the court has overturned the conviction.  Keep in mind no two cases are alike, and that the success here does not mean your appeal will succeed.  No lawyer can guarantee a specific result.

A sophisticated employer knows how to interpret the numbers and language in the DD214.  The codes are easily findable on the internet.  This creates an issue with coding for early separation due to draw-down measures.  So the following came over the transom.

DD 214 SEPARATION PROGRAM DESIGNATOR NARRATIVE

The DD Form 214, which is issued to all servicemembers upon discharge from military service, includes the discharge status (honorable, other than honorable, etc.) as well as a Separation Program Designator code and narrative reason for the separation, such as Force Shaping (Board Selected), Reduction in Force, Insufficient Retainability (Economic Reasons), or Early Retirement.

While the military Services are relying on both voluntary and involuntary separation to meet their reduced force structure requirements
and maintain a balanced force, there is concern that the narrative codes could make a permanent, negative mark on  the records of dedicated servicemembers who served honorably. The Under Secretary of  Defense (Personnel and Readiness) is directed to revise the regulation regarding the use of narrative codes on the DD 214 to address  these concerns.

This came to me without references.  But it is something to inquire and think about.  Perhaps those already with DD214’s could ask for correction board action.

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.