Air Force Court of Criminal Appeals

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.