ACCA court-martial appeal decisions

United States v. Story.  Here the issue is two-fold: what is the response when the members want to call a witness, and what is permissible on appeal to demonstrate prejudice.  ACCA found error in the military judge denying the members an opportunity to call a witness.  On appeal, ACCA found that documents submitted by appellate government and appellate defense could not be considered.  This seems odd, because the defense is trying to show prejudice from the error and the government is trying to show lack of prejudice.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued:

MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head.

MEMBER [Lieutenant Colonel (LTC) MEYER]: I am wondering, ma’am, if we can ask for additional witnesses to be called.

MJ: The answer to that is, you’ve heard all of the evidence in the case.

Neither party objected to the military judge’s ruling, or asked for additional information. The military judge then began her instructions to the members, followed by closing arguments of counsel.

Note Judge Leeker didn’t ask who they wanted to call and why.  And neither counsel objected!  At a minimum the counsel needed to object to the judge failing to at least inquire into the name and purpose.  If the MJ does asks but denies the witness, there is at least some indication for argument about something troubling the members, and of course the issue is better preserved.  In addition,

While the military judge may properly exercise his or her discretion and deny a member’s request for additional evidence, our superior court has set forth a non-exclusive list of factors the judge must consider prior to doing so.

Difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be subject to a claim of privilege; and the objections of the parties to reopening the evidence are among the factors trial judge must consider.

Trial defense counsel did track down the member and figure out what the issue was.

Neither side addressed the preliminary question of whether it is appropriate for this court to consider extra-record matters in this instance. We hold that the members’ request for additional evidence is not a collateral matter. As such, we will not consider the extra record appellate submissions concerning the identity of the witness the members wanted to request, as well as the proffered substance of that witness’ testimony in deciding this issue.

Although they did consider the matters on a Grosty IAC claim relating to the requested witness.  The court takes the position that the submitted matters are extra-record and can’t be considered to :

to support or reverse a conviction . . . .” United States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973) (quoting United States v. Lanford, 20 C.M.R. 87, 95 (C.M.A. 1955); see also United States v. Stokes, 65 M.J. 651, 653-55 (Army Ct. Crim. App. 2007) and numerous cases cited therein.

But while the court does a good job of analyzing situations when post trial submissions may be extra-record but considered, they seem to miss the prejudice shown or not shown by the documents.  Here the court found error, but then apparently ignored the extra-record documents when deciding the appellant had not been prejudiced.

This evidence was never put before the members and was not subject to cross-examination. See id. Accordingly, we will not consider it.

But isn’t that the point of a prejudice analysis?  If the evidence had been presented could there have been a different result.  Notably the court does seem to conclude that even had the evidence been introduced there would not have been a different result.  They considered the matters in the Grosty IAC claim and determined there was no IAC, impliedly saying that the lack of the evidence was not prejudicial.  Odd.

United States v. Thurston.  This is another in the “new matter” column for post-trial SJAR’s addendum.  Apparently the SJA included a chronology of post-trial events which was not served on the defense.

Each of the time periods provided in the chronology contained an attendant explanation. Included in the chronology was an explanation that: on 18 February 2009, the accused and his counsel had met with the convening authority; and from 1 April 2009 to 30 June 2009, had been spent coordinating with the family of the victim “on clemency for the accused.” As acknowledged in appellee’s brief, the two aforementioned events were not part of the record of trial. However, the addendum was never served on appellant or his defense counsel.

Government appellate counsel also submitted a post-trial affidavit averring that the victim’s family did not recommend clemency for appellant. The affidavit details that the victim’s widower was opposed to clemency, as was the victim’s mother. The affidavit notes that the victim’s mother had “changed the position she had taken at the court-martial” and was now “adamantly” opposed to clemency for appellant.

Keep in mind that most SJA’s have a sit-down with the CA and discuss the case.  So it’s quite likely the CA became aware of the victims change of heart about clemency.   The appellate trend seems to dictate that any time the SJA is going to submit something to the CA after receiving the defense matters, it’s best to go ahead and serve the defense out of an excess of caution.

United States v. Kloch.  This case addresses limitations a military judge may place on an accused’s unsworn statement on sentencing during his court-martial.  The issue was discussion of results in co-accused’s cases.  ACCA found the military judge erred in preventing such statements, but the error was not prejudicial.  The case gives a decent review of the wide “discretion” allowed an accused to say what he or she wants during their unsworn statement, including otherwise inadmissible information.