CAAF issues two decisions

United States v. Douglas.  This is a UCI case.  The military judge found UCI and then crafted a remedy.  The issue on appeal related to the appropriateness of the remedy and whether or not the appellant had accepted the remedy and actively participated in the remedy.  The AFCCA decision was reversed.

If the record disclosed that the reasonable remedy had been implemented in full, Appellant’s participation in and apparent acquiescence at trial to the remedy crafted and Appellant’s
disavowal of any claim of ineffective assistance of counsel would end the inquiry. However, because the record does not disclose whether the remedy crafted by the military judge was
actually implemented in full, under the facts of this case we devolve to the ordinary test whether unlawful command influence deprived Appellant of access to character witnesses. United States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining the government’s burden to establish beyond a reasonable doubt that defense access to witnesses was not impeded by unlawful command influence). We are not convinced beyond a reasonable
doubt that Appellant was not thus prejudiced. United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a reasonable doubt the correct quantum of proof applicable to issues of unlawful command influence). Accordingly, we overturn the United States Air Force Court of Criminal Appeals.

The facts of this case are not uncommon.  Commands routinely give no contact orders to an accused (but interestingly not their own witnesses).  It is not unusual for a command to cast an accused adrift, make them an outcast, and directly or indirectly imply to others that supporting and helping the outcast will be viewed with disfavor.

Appellant moved to dismiss the charges and specifications against him on the ground that MSgt Bialcak’s orders and actions constituted unlawful command influence by creating a hostile environment that made it unlikely that Appellant’s colleagues would speak on his behalf.

The bottom line lesson of this case should be directed at SJA’s and trial counsel.  They are the ones with the first and most effective opportunity to avoid UCI problems with potential witness interference.  In each of these cases it is my view that the training, guidance, and assistance rendered the commander by the SJA office is defective.  If the SJA is doing her job, her counsel should be out there in advance of a case, and specifically when a case comes up ensuring that the command is properly educated about interference with the defense.  I attribute the continuing nature of this type of issue to a failure on the part of the SJA and trial counsel.  At trial and on appeal everyone puts the burden on the defense to prove UCI.  Why do we never put a burden on the SJA and TC to do something before UCI rears its ugly head?  In the opinion CAAF refers to the MJ as, “the last sentinel,” so who is the first?  It’s not the defense counsel, “it is a shared responsibility.”  In this case all were quite happy to think about blaming the defense counsel because he didn’t object or object strongly enough.  For example, in the dissenting opinion:

On the other hand, neither the military judge nor the defense counsel put the Government to the test.

Ergo, if you don’t challenge, then the government can get away with it.  So the lesson to the defense is never ever agree that any “remedy” suggested by the military judge is sufficient.

The blogosphere critiques this opinion as poorly written and unneeded because the defense didn’t complain.  So it’s all the defense fault.  The blogosphere may be – technically – correct, but . . . Gosh, it’s always the defense fault.  I for one believe this opinion could do a service by addressing a very common problem when an accused is charged.  I doubt however that anything will be done training-wise. 

United States v. Ellis.  This is a case regarding a government expert testifying about rehabilitation potential in a sex case, using part (I emphasize part) of a psycho-sexual evaluation.

I’m a proponent of using psycho-sexual evaluations in sentencing.  I take the position that failure to at least ask for assistance in that regard is IAC in child sexual abuse and child pornography cases.  I have no problem with the prosecution using psycho-sexual testimony, assuming it is based on a legitimate evaluation and the defense has had a legitimate opportunity to have their own evaluation.

The flaw in Ellis is that the government expert never talked with the accused.  The flaw isn’t related to the Static-99 or similar tests.  All experts who do psycho-sexual evaluations (at least legitimate ones) will tell you that a personal interview and testing is critical to a proper evaluation using Static-99 or other instruments, and included in that testing is a polygraph.  In this case the government expert did not have a critical part of the evaluation.  IMHO this case is wrong, not as to the use of psycho-sexual evaluation testimony, but as to the adequacy of the foundation for that testimony.

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2 responses to “CAAF issues two decisions”

  1. Peter E. Brownback III says:

    I believe that the advice to DC is going to get some of them into some serious trouble.

    “Ergo, if you don’t challenge, then the government can get away with it. So the lesson to the defense is never ever agree that any “remedy” suggested by the military judge is sufficient.”

    I realize that you do not mean what you say, but some of your readers may take you at your word. Not all MJs are willing to put up with unlawfully obstructive behavior.

    Counsel are officers of the court. They can and should be directed to detail what remedy they propose and the legal basis therefore. This applies to both TC and DC. A counsel who refuses to comply can find her/himself in serious troubles.

    I believe that a better approach would be to provide counsel with a proposed remedy which might stretch the bounds of what is required but is not beyond the bounds of legitimate argument or extension of the current law. Most MJs will be happy to receive such a proposal and will then switch fire to the TC.

    The MJ is simply trying to get a case tried IAW the law. Almost all MJs that I have known all willing to go beyond what is legally required if given a good reason therefore. For instance, see MJ Henley in the AF COL(P) case.

  2. The Law Office of Philip D. Cave Viking says:

    Peter, thanks for the thoughts.
    Perhaps that part could have been better said with a [?] after the sentence?
    I think the remedy that a defense counsel should propose for UCI is dismissal with prejudice, and no other. It is true that the appellate courts are allowing more leeway, especially when a judge can issue potentially curative instructions or remedy. But I still think a DC can honorably object to a MJ’s remedy as being insufficient. I don’t think that a DC has to volunteer a cure, unless they believe there is a benefit to be gained to the client.
    I’m not sure continuing to object to any remedy is unlawfully obstructive behavior. And certainly if a MJ directs something the DC has the duty to follow through once the objection is properly and effectively made into the record. I do agree that not following a MJ’s order once made would be unlawful, and a bad idea. But it has to be clear that the participation is over objection and not “actively participating.” An MJ who tells the counsel to come up with a remedy in this situation is shifting responsibility, IMHO. It should not be up to the defense to participate and remedy a prosecution created problem.
    My frustration and rant is how all of this typically ends up with the defense carrying the bag. This is my perception, I understand, but it seems that the government can get away with it so long as the defense doesn’t object, or doesn’t suggest a remedy, or doesn’t object forcefully enough, or . . . A few dismissals with prejudice ought to be good for the system.
    [BTW COL Henley is one of the judges I have a great deal of respect for because of his willingness to do the right thing without putting his thumb on the scales one side or the other.]
    Note sure I’ve answered your concern, but thanks for expressing it.

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