Articles Posted in Trial-Craft(c)

Recently, in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016), the (unnamed and not me or several of my closest friends) civilian defense counsel was held in contempt for late filing of a motion.  It appears this was not the first time in the case for the same counsel of missed deadlines.  The decision drew some angst among the military justice literati.  Based on the facts as written in the opinion, I’m not troubled by the decision.  We must wait a few weeks to see whether the appellant will petition CAAF (will let you know).

Today I’m reading and reviewing a new record of trial (Air Force as well).  It appears the defense filed a significant motion the day before trial.  The prosecution asserted they were not prejudiced by the late filing.  The military judge had this to say.

MJ: Understood. This seems part of a disturbing trend of counsel thinking that the week before trial is the time to begin case preparation. I’ve also heard this in the context of a request for continuance or docketing request that counsel feel the need to, as of right, have a week on site before every case, and I’ll just remind counsel that case preparation is an ongoing endeavor that should begin when the evidence is received, if not beforehand, and I really see no valid excuse for failure to file these motions in a timely manner. That being the case, as I stated, it’s just fraught with appellate peril for me to impose any sanction of any sort, so I find it somewhat amusing that I read comments from defense counsel saying that we don’t do enough to hold trial counsel’s feet to the fire when they violate discovery obligations, but correspondingly, the defense counsel basically has carte blanche, absent me pulling out the extreme contempt gavel, to ignore the scheduling orders of the court. And so it’s with great consternation that I will not impose any sanction at this point. The accused should not be the one who has to suffer for his dilatory counsel.

I was reading Unwashed Advocate today, and thought I would repeat his good advice on how best to make a motion or objection at trial.  I have a couple of additional thoughts, but otherwise his is good advice.  He says, and I quote extensively:

However, when it comes to making a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”

Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends.  The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it.  At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense.  Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism.  So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and  “erotic asphyxiation.”  There is confusion over application ofthe term and the scope of the behavior.  There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly.  Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense.  I have several appeals now where this issue is clearly presented.  But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

Prof. Colin Miller has an interesting post about prosecutorial discretion during the course of trial.

Besides getting a conviction and an appropriate sentence, a secondary gain of the prosecutor is to have the case affirmed on appeal.  Affirmance means a guilty person doesn’t walk or get a new trial.

In the post Prof. Miller refers to a successful prosecution objection excluding “compelling defense evidence,” on what he terms a technicality.  He closes his post:

Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system.  It seemed to work.

Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols, Texas Tech Law Review, Vol. 45, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper, 2012-70. Available at SSRN:  The author

argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials – notably judges, whose judgments depend on that process – should assume greater responsibility. The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.

Here is an interesting case from the Tenth, about cross-examination of a witness about a prior judicial “finding” that the witness was not credible — United States v. Woodard.

The court states this basic principle from its own jurisprudence:

The Sixth Amendment guarantees the right of a defendant to “be confronted with the witnesses against him.”  U.S. Const. amend. VI.  One of the primary interests secured by the Sixth Amendment’s confrontation clause is the right of cross-examination.  Davis v. Alaska, 415 U.S. 308, 315 (1974).  This is the“principal means by which the believability of a witness and the truth of his testimony are tested.”  Id. at 316.  A violation of this constitutional right occurs when “the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor.”  United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) (internal quotation marks omitted).  Stated differently, “‘a defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination.’”  Id. (quoting Parker v. Scott, 349 F.3d 1302, 1316 (10th Cir. 2005)).

The NMCCA has issued an unpublished opinion in United States v. Belcher.  This case has lessons for the defense and the prosecution.

It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators.  The PTAO languished.  Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.”  The TC then provided the DC with a grant of immunity and order to testify.  The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].”  Later a PTA for 12 months was negotiated.

It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.

I was thinking this morning about issues that a trial defense counsel ought to be aware of and/or know about for appeals.

This evening I got a VACLE “tip,” entitled, Did You Know? What’s the most common reason arguments on appeal are not heard on the merits?  The following was included.

Proffer excluded testimony and exhibits for the record: One of the least understood practices essential to preserving error concerns proffers. If testimony is excluded, the appellate court generally cannot address an appeal on that point unless the party offering the testimony proffers the testimony so that it is part of the record. Likewise, exhibits that are excluded need to be marked “excluded” and included in the record, and the offering party must demonstrate in the record not only an objection to the exclusion but the reasons supporting the objection.

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