CGCCA issues two decisions

United States v. Garcia.  This case deals with the ongoing perplexing issue in Coast Guard (and Air Force) cases where recorded Article 32’s are not done and where the defense is prohibited from making their own recording.  A secondary issue was a removal of defense counsel without the client’s consent.

CGCCA found no constitutional violation in denying the defense from making a recording.  However, and here’s the lesson:

This is not to say that the convening authority did not abuse his discretion in denying the defense request to be permitted to tape-record the proceedings and provide tapes to the government. We do not reach that question.

The defense let the judge off the hook, and also CGCCA.  Now, there’s no telling how the CGCCA would have ruled had the defense perfected the issue.  But as an appellate defense counsel it is frustrating when good issues are waived or not perfected.  Bang, bang, stamp, stamp [n.1]— in a footnote the court indicates:

We find the Government’s arguments attempting to justify the denial unconvincing. We have considerable doubt that it can be justified, provided the recording process is not disruptive.

However, I suspect this case is going to CAAF on the counsel issue.  According to the CGCCA a military defense counsel, who has entered an appearance on the record, can be removed from the representation because he is going to deploy to Iraq for six months, and that means there would be too long of a delay in the trial.  For the first time in a long time I’m reading that defense counsel are fungible.  Perhaps the saver here is that it was a guilty plea case ultimately, so arguably this will be an error that is harmless.  Unless, the client pled guilty because he’d felt that there was nothing else to do and gave up because the Navy could whisk his defense counsel away.  I accept that I may be over-reacting, but this just doesn’t look good.

Appellant objected to releasing LT B because the new defense counsel had not been present at the Article 32 investigation, which had not been recorded. The military judge found that Appellant had an attorney-client relationship with LT B, ruled that good cause had been shown to release LT B, and accordingly released him, noting, among other things, that the assistant defense counsel, who remained detailed, had been present at the Article 32 investigation.

United States v. Hester.  This case was submitted on its merits, odd for a CGCCA case.  However, the court was,

troubled by the specification of wrongfully possessing a loaded pistol, and the providence inquiry upon this nonstandard specification.. . .

Given that that the Government’s theory of prosecution is contained in a novel specification, it was essential for the military judge to conduct a careful examination to ensure that Appellant understood the theory. [United States v. ] Medina, 66 M.J. [21] 26 [(C.A.A.F. 2008)]. However, the record does not reveal that Appellant understood the Government’s theory of prosecution.

With the charge being set-aside, the sentence on the remaining charges and specifications was affirmed.  The remaining charges related to fraudulent enlistment and multiple cocaine possession and uses.  In different circumstances this might be a close case on reassessment, but 90 days and BCD seems well in line for what was left on the charge sheet.

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n.1.  At Naval Justice School (true in the old days), if the instructor did a bang bang stamp stamp, that was a good sign the point he was teaching might be on the test.

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