Government charging-lack of preparation and caring — Court-Martial Trial Practice Blog

Unusual for me, but I did a guilty plea case this week.

Going in to the case and throughout the case the client was accused of a lot of offenses, some of which were a course of conduct over a period of time. Not unusual, right, so we had some right and left dates.

So, you are dealing with a government that takes the view you plead to this – X Y Z – or no deal. You get to the point where you say fine. You and the client take the deal.

I always find it interesting when you get to that point in the providency inquiry on this type of specification and the client says that, “I did this, but only up until a date X.” So now we’ve got a problem. The MJ knows but he asks the client why only up until date X, to which the client responds, “I was put in pretrial confinement on date X.” Now we’ve got a real problem, have we busted the deal. You have to wonder, especially when it got through the Article 32, IO, the same way with an accused sitting in front of the IO who is obviously in PTC.

So, I was reading United States v. Doshier today, which has in my view a much more serious problem of government lack of caring when charging. This is a NG involving CP, which is a notorious situation where the government overcharges, or charges-without-caring.

While deliberating, the panel reviewed approximately six hundred images of alleged CP. The panel returned a general verdict finding appellant guilty of the specification as drafted: that is, of knowingly possessing over four hundred images and photographs of CP.

The Army CCA now has to do a review on appeal. And here is what we find out (not sure if this is for the first time or not. If it’s for the first time then it appears there was an issue with trial defense counsel as well.)

It is apparent from our review of the evidence that some of the images presented to the panel clearly do not constitute child pornography.

But wait, surely counsel, and possibly the MJ, viewed them before hand to ensure only admissibly and relevant evidence was being presented to the members?

The ACCA goes further:

As appellant notes in his brief, some images include depictions of a door, a sign, the back of someone’s head, fully-clothed children, children in bikinis, and images too small to determine their content.

[Side note of something I often raise is if the court and members can’t figure out,because of size, if it’s CP, how is the accused supposed to do that. This is another reason why I also object to blow-ups and enhancements of alleged CP images-such blow ups are a deliberate misrepresentation of the evidence.]

The ACCA goes on:

However, we have reviewed every image and are convinced beyond any reasonable doubt that at least three hundred of these files constitute CP.

This is not just an issue of lack of caring is it.

What’s the ethical responsibility of a prosecutor here? He/she represented to the members on the record that the government believed the images were all of CP. Is that an ethical representation? I suggest not, if as ACCA makes clear quite a few of these images are not borderline and subject to interpretation.

I have no doubt that had there been a PTA in this case it’s quite likely that the government would have required the accused to plead guilty to the 400 plus language. They would have done so knowing, or should have known that it is only 300.

Perhaps these prosecutors took the attitude of who cares 400-300-600 it’s all CP, etc., etc., etc.? That’s a great rationalization and great extenuation and mitigation for the ethical error or the dereliction of duty.