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CAAFlog

Air Force Court of Criminal Appeals

7/11/2023

 
In re VM is another SVC petition for a writ of mandamus asking that the court vacate a MJ's decision to grant a defense-requested continuance of trial and ordering that the SVC be allowed to have input to the motion. 

15 July 2022, two charges against the Real Party in Interest (“the accused”) were referred to a general court-martial. The trial was set for 12 June 23, apparently without an objection from the CW.

3 May 2023, the MJ granted a defense motion for a continuance until "any date after 1 August," which happened to be 28 August.

On 30 May, the SVC petitioned for a writ. (AFCCA RP&P Rule 19(b)(1) says, "A petition for extraordinary relief shall be filed as soon as possible but, in any event, no later than 20 days after the petitioner learns of the action complained of.")
Appellant retained new counsel, Mr. CH, who filed a notice of appearance with the trial court on 17 April 2023. On 19 April 2023, the Defense filed a motion to continue the trial to a date no earlier than 1 August 2023. On the same date, Mr. CH clarified that his appearance was limited to his request for a continuance, as he would not be able to represent the accused if the request was denied. 

The Prosecution opposed the defense motion in writing on 24 April 2023. The Prosecution asserted as fact that On 24 April 2023, counsel for named victim [VM] provided a memo from [VM] in which she states she suffered pecuniary loss from the long waiting period before trial and expect[s] to suffer further loss if there is any further delay. The loss is due to legal fees because the Accused’s divorce from [VM] has been continued due to the court-martial.
Apparently there was a filing from the SVC on behalf of the CW.
The military judge considered the parties’ filings, but did not consider the separate responses from the detailed victims’ counsel for VM and the child. Citing In re HK, 2021 CCA LEXIS 535 (A.F. Ct. Crim. App. 22 Oct. 2021) (order), the military judge explained in a footnote: “This court received the responses but did not consider them due to lack of standing before this trial court.” VM’s counsel’s response totaled 49 pages, comprised of an 8-page document from counsel and 7 attachments, including VM’s memorandum and attachment. VM’s counsel asserted the Defense had not established a reasonable basis for a continuance; a continuance is not just as it violates VM’s Article 6b, UCMJ, rights; and the accused’s interest in “convenience” does not outweigh VM’s Article 6b, UCMJ, rights. 
In granting the continuance, the MJ considered the TC's objections and filings, which included information from the CW. He did not consider the SVC's filing for lack of standing. The TC did a robust job of advocating for the CW's interests in keeping the scheduled trial date. Although the court did make a point that,
Importantly, absence of a specific statutory right to be heard does not mean that a military judge is prohibited from considering a victim’s effort to exercise Article 6b, UCMJ, rights. To the extent the military judge in this case believed otherwise based on the unpublished order In re HK, he was mistaken, but any such mistake in this case is not dispositive on the issues before us.
The court concludes that the MJ properly balanced the accused's convenience in being represented by counsel of choice against the interests of the CW, which were thoroughly funneled and argued through the TC as her advocate. Stated another way, the CW's 6b rights were effected by the TC and considered by the MJ. The opinion does not indicate that the SVC alleged the TC failed to advance any argument the SVC would have made or failed to proffer sufficient evidence. One imagines there may have been some consultations between the TC and SVC before the hearing?
The military judge denied VM the opportunity to be heard through counsel, but otherwise allowed her exercise of rights to proceedings free from unreasonable delay and to be treated with fairness under Article 6b, UCMJ. VM was not entitled “to a trial date of her choosing,” but her circumstances were “factor[s] for the military judge to consider in balancing competing interests and making scheduling decisions.” In re KK, 2023 CCA LEXIS 31, at *16–18. The military judge considered VM’s personal statement and its attachment, as well as the argument from the Prosecution on VM’s behalf. He considered how a delay would affect VM and her family. He balanced VM’s rights with the accused’s rights, and ultimately ruled in favor of the accused.
We've all seen plenty of times where the SVC in a case had the right to make a presentation on an issue--412, for example--but waived off because everything they would say had already been said by the TC. Having two people say the same thing doesn't improve the argument.
Checking Bias
7/12/2023 14:05:00

Why does this blog find it necessary to say “CW” instead of victim? Victim is a term with legal meaning and used throughout the U.C.M.J., as a matter of fact a person needs to be a victim to even file the writ petition this entry is talking about. The disdain for victims on this site is baffling.

Tami a/k/a Princess Leia
7/13/2023 13:17:46

Checking Bias,

"Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a [military servicemember] is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision."

Doe v. Brandeis University, 177 F. Supp. 3d 561, 573 (D. Mass. 2016) (emphasis added).

We use CW (complaining witness) as a legally accurate term to refer to someone who's made a criminal complaint against someone, and the case is awaiting adjudication. Using the term "victim" sends a subliminal message that it's already been decided the crime occurred.

Certainly, we can also use terms like "complainant," "accuser," or "alleged victim," which do you prefer? Not that any one commentator's opinion matters. The refusal to use "victim" to refer to someone who hasn't yet been adjudicated as such doesn't show "disdain."

D
7/13/2023 14:50:17

Two specifications of battery against a child. Complaining witness is different than the victim, as the style of the case is 'In re VM'. That would be, assuming that the accusations are true. That being said, the 'real party in interest' is the accused. There isn't a whole lot in law that assumes accusations are true against an interest. Then, there is the divorce being asserted as percuniary interest due to lawyer fees: those parties are 'plaintiff' and 'respondent.' Foot note two shows that those peices of personnel information had been redacted at one point.

At 3. It states: 'The military judge considered the parties’ filings, but did not consider the separate responses from the detailed victims’ counsel for VM and
the child.' The part with an apostrophe after the s suggest there are multiple SVC.

Finally, at 4 it states: [VM], one of the alleged victims, is in the midst of divorce proceedings involving the accused. Herein, VM is described as not having established being a victim by the sitting judge.

A lot of moving parts, titles, and persons here. But a long way from being able to assert bias on the part of the editors.

Tami a/k/a Princess Leia
7/13/2023 23:49:55

@D, just an FYI, VM is named as a "victim" of abusive sexual contact and several ACBBs under Article 128. But being a named victim doesn't automatically make her a "victim" because the court-martial deciding that very issue has yet to occur.


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