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CAAFlog

Air Force Court of Criminal Appeals

1/28/2023

7 Comments

 
In United States v. Reimers, the Appellant challenges the constitutionality of UCMJ art. 134(3).
For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3.
. . . 
Appellant must prove the Government has no rational basis for treating a military accused differently from a civilian federal defendant. See Paulk, 66 M.J. at 643. It is well established, however, that the Constitution applies to a military accused differently in many contexts than it does to a civilian defendant. See Easton, 71 M.J. at 175–76. We determine that Congress possessed a rational basis when it passed Clause 3, specifically, the promotion of good order and discipline by allowing military prosecution of federal crimes not necessarily enumerated in the UCMJ. We further conclude Congress possessed a rational basis for making Clause 3 offenses subject to the military court-martial system and not requiring the military provide a military accused the exact same rights as a federal civilian defendant. We also note that Appellant pleaded guilty to the Clause 3 offenses.
In In reKK, the complaining witness sought a writ because the military judge denied a government requested continuance so she could be available for trial. (The writ of course gets such a continuance.) The court finds no basis to issue a writ.
What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws.
7 Comments
Nathan Freeburg
1/28/2023 16:07:28

With regard to In re KK it looks like the trial was docketed for March 2023 so the decision actually came fast enough to prevent the requested continuance…(now if CAAF takes it….)

Reply
Viper
1/29/2023 13:26:11

This reasoning in In re KK should not stand as it contradicts Art. 6b (as well as general senses of morality and fairness, despite those not generally being sound legal arguments). Art. 6b provides "the right not to be excluded from any public hearing or proceeding . . ." How would that be wholly enforced if not for the victim's ability to ask for a continuance/have their availability considered? Let's run an example here to show the court's reasoning is not sound (and this example may or may not be based on real life): victim is pregnant with accused's baby that is a product of the charges. Court is scheduled on her due date. Prosecutor, for whatever reason, will not ask for a continuance based on the victim's medical status. What is the recourse if not for the victim's (or her counsel's) ability to motion the court?

Reply
Philip Cave link
1/29/2023 14:15:01

In real life, the courts routinely schedule trials around the due date of a pregnant defense counsel or their materinity leave (and sometimes trial counsel). I have had a case rescheduled because the CW was too far into her pregnancy to fly without medical complications. (There are some medical certifications involved in this.)

The pregnancy due date would / should be a topic of discussion during the scheduling conference with the MJ. I'd be surprised if a TC would not seek a continuance for a pregnancy due date, even it had not been addressed during the original scheduling ot the trial.

The nature of the pregnancy and associated physical and psychological issues are the sort of good basis for granting a continuance. So I highly doubt any MJ would rely on this case to deny an appropriate schedule change in where the complaining witness is pregnant. But . . .

Reply
Joker
1/30/2023 00:30:19

Viper, the emotional weight of your example aside, I don't think it maps onto the problem and reasoning in In re KK. Namely, the court is clearly affected by the fact that the victim's unavailability in this case is her election not to attend the proceedings (albeit because her counsel of choice would be absent). The analysis of the Gov't continuance request would have been completely different at both levels if the victim (and main witness) was medically unavailable.

I do think the appellate court breezily dismissed the victim's "right to not be excluded". I think more explanation of whether that's a positive or negative right is merited (that is, "right not to be excluded" may be meaningfully different from "right to be included").

But I'd be more troubled if the victim could choose to impose limits on their participation and the court then held that the victim's statutory right under 6b overpowered the Accused's constitutional right to speedy trial.

That all said, in the extreme case presented by your scenario, I think the powerful equity of the victim in such a case could merit relief under "treated with" fairness/dignity/respect provision of 6b. But creating a bright line where victims can generally trump the trial schedule would be problematic (think of minor crimes, multiple victims--like a serial thief with a batch of misdemeanor-level larcenies).

Reply
Philip Cave link
1/30/2023 09:38:58

Or the not uncommon 120 with several 413 witnesses who each have an SVC.

Recovering DC
2/3/2023 07:53:32

*Motion to sever highlighted my client’s speedy trial interest* (vice full speedy trial motion). Rulings on motions lead to a favorable PTA, so won’t be getting an answer on the Art 6b question

Nathan Freeburg
1/30/2023 10:21:44

If the prosecutor doesn’t request a continuance where a witness is unavailable presumably that was for good reason (like they don’t need that witness). The only parties to the case are the government and the accused. Article 6b alleged victims are not a party to the case, they are a third party with an interest and thus limited standing. If neither party chooses to call them as a witness then they don’t have a right to testify on the merits. (The Article 6b right is a right to attend, not a right to testify.). So in your “hypothetical”, if the government is choosing not to call the witness, no there is no Article 6b right to force the government to call them as a witness.

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