New CAAF opinions

United States v. Edwards.  Good case for a refresher on custody and confinement and their distinctions.

Whether an accused is guilty of escape from custody or escape from confinement logically depends upon the accused’s status at the time of the escape.  Article 95, UCMJ, 10 U.S.C. § 895 (2006).  We granted review in this case to determine whether the military judge erred in accepting Edwards’ guilty plea to escape from confinement.  We hold that Edwards was in custody rather than confinement at the time of his escape and his guilty plea to escape from confinement was therefore not provident.

Note to defense counsel.  If the accused is brought to your office while in custody or confinement for the purpose of case preparation (which is preferred), make sure that any time the client is outside your presence that you make a positive hand-over to the escorts.  That not only ensures the client doesn’t run, as in Edwards, but it’s also protective for the escorts who have a duty to hold on to the client.  Also, if you get a situation like Edwards that might discourage commands from cooperating and cause them to make you go to the Brig for clients meetings.

United States v. Flores.  This is a refresher on mixed plea cases tried by judge alone, and the trial counsel’s insatiable desire to comment on an accused’s silence.

A “trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in [her] defense.”  United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citation and quotation marks omitted).  In a guilty plea context, a military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense.  See United States v. Resch, 65 M.J. 233, 237 (C.A.A.F. 2007).  We granted review to consider whether, during her closing statement, trial
counsel improperly referenced statements made by Flores that were protected by the Fifth Amendment and whether she improperly commented on Flores’ right to remain silent.  We conclude that any errors or presumed errors were harmless beyond a reasonable doubt.

Note to defense counsel – OBJECT.

. . . we review this statement for plain error.  Given the direct reference made by trial counsel to a statement made by Flores at the providence inquiry, there can be little doubt that this was error and that it was plain and obvious.

When the defense counsel objected on the grounds that this statement was a comment on Flores’ right to remain silent, trial counsel responded, “No, it wasn’t Your Honor.  It was a comment on what Sergeant Flores told you in court during her guilty plea.”  If there was any question as to whether this was a reference to a statement made by Flores at her providence inquiry, trial counsel’s response cleared up any confusion.

Judge Stucky’s dissent was based on his view of how CAAF misconstrues and misapplies the plain error doctrine.  Interestingly he cites to Prather in regard to the impossibility issue with certain burden shiftings.

Note to self.  The harmless error rule is a frequent get out of error card for the prosecution.  In principal that’s not necessarily bad considering the public and judicial policy behind the rule.  But at what point does the continued application of the rule encourage trial counsel and SJA’s to violate the rules?  Have you heard a trial counsel say, well if it’s wrong they’ll take care of it on appeal your honor?

United States v. Gooch.

We granted review of the following three issues:

I.  WHETHER THE PROCESS FOR SELECTING PANEL MEMBERS FOR APPELLANT’S GENERAL COURT-MARTIAL WAS IMPROPER IN LIGHT OF ARTICLE 25, UCMJ, AND UNITED STATES v.
BARTLETT, 66 M.J. 426 (C.A.A.F. 2008).
II.  WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN, AFTER THE MILITARY JUDGE LEARNED DURING SENTENCING DELIBERATIONS THAT THE MEMBERS HAD IMPROPERLY RECONSIDERED A FINDING OF NOT GUILTY TO SPECIFICATION TWO OF THE ADDITIONAL CHARGE, AND AFTER STATING THAT HE WAS INCLINED TO DISMISS THE SPECIFICATION IN ORDER TO CURE THE ERROR, APPELLANT’S TRIAL DEFENSE COUNSEL URGED THE MILITARY JUDGE NOT TO DISMISS THE SPECIFICATION.
III.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE DOCTRINE OF “WAIVER” AND “INVITED ERROR” BARRED CONSIDERATION OF APPELLANT’S CLAIM OF INEFFECITVE ASSISTANCE OF COUNSEL.

There was an erroneous but non-prejudicial selection process.  There was no IAC.

Here’s my favorite part of the opinion.  Remember, the MJ has learned of an illegal reconsideration of a not guilty finding on a specification.  This would be a novel event would it not? So here’s the repartee.

Military Judge:  What would you like to do? Defense Counsel:  Your Honor, . . . this just does not rise
to the level of impinging upon Colonel Gooch’s constitutional rights.  It appears the members were
conscientious, did the best they could, and they came up with a finding, and we are not requesting that you dismiss Specification 2 of the Additional Charge.  And we would like them to continue with their proceedings on sentencing and their deliberations.
Military Judge:  And Lieutenant Colonel Gooch, are you in agreement with the position your counsel has just stated?
Appellant:  Yes, sir.
Military Judge:  . . . Is this a waiver of appellate consideration of any error involved in this?
Defense Counsel:  Your Honor, off the cuff, [without any of us taking a break and doing a little bit of research?] the potential is that some things are waived and other issues on appeal are not waived, of course, so we do not want you to dismiss[.]

According to CAAF the defense counsel had a defensible strategy for not wanting a mistrial.  Basically the defense thought they had created a sympathetic panel (that wasn’t able to follow instructions) and didn’t want to risk a mistrial where they may draw a less than sympathetic panel.  Thus they were willing, and the appellant agreed, to stay with the panel.  This was obviously a tough call.  And it was a tough call for CAAF to be able to put themselves in the place of a trial defense counsel who doesn’t have days and weeks to mull over a record of trial.  I just wish they’d not discussed this novel legal issue “off the cuff.”

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