A new item in the AF JAG Reporter is worthy of a read.
Captain Rocco J. Carbone, III and Captain Christina L. Heath, A Review of 2022 Court of Appeals for the Armed Forces Updates to Military Rule of Evidence 513. September 27, 2022 at 1.
A "headline" suggests that "C.A.A.F.’s opinions and actions this term helped to demarcate some of the boundaries to Mil. R. Evid. 513, yet the likelihood of litigation remains high."
Mellette has proved useful, on a trial motion to reconsider denial of access, but not useful because the response was that "records older than 10 years are not retained" (or words to that effect).
We are particularly interested in their language
Regarding the “inappropriateness to allow [the] privilege,” courts have held that the privilege should not act as both a “sword” and a “shield.” In other words, the privilege holder may not use it to disclose evidence “to establish advantageous facts and then invoke the privilege to deny the evaluation of their context, relevance, or truth—thus turning the privilege from a shield into a sword—a circumstance the waiver rule’s broader language seeks to avoid.” Regarding appropriateness, practitioners should consider the perceived intent behind the communication when it was made and for what purpose
The question implicates the common cherry-picking that goes on with reports of offenses whether it be about psych records or the, very common, cherry-picking of texts on a smartphone. It seems that cherry-picking during the course of an investigation fits within the idea of establishing "advantageous facts" with the intent to advance a prosecution.
An off the wall question is whether the Rule also applies to patient-therapist records of an accused. The Rule does not contain a general exception for records of the accused. There is a specific exception when the accused has first offered statements concerning a mental condition. See R.C.M. 513(d)(7). Why should there not be a similar rule for a witness who first offers evidence of a mental condition? Is there an 'they opened the door argument?'
We have a couple of questions that relates to a not uncommon event.
A court-martial accused and "victim" are in civilian court on a divorce and child custody matter.
Under the state rules of discovery there can be required depositions and medical and mental health records disclosure. These records, after all, may be relevant to who is the best parent to have full or joint custody of a child or whether a divorce should be granted 'for cause.' There is due process attendent to the nature and extent of the discovery. And the records may now be part of the court records for the case (e.g., in testimony).
An alleged victim goes to civilian court for a Protective Order. The person "accused" has the due process right to a hearing. At the hearing, the "accuser" has the opportunity to make a presentation, and assume she does. See, e.g., Fairfac County, VA, Local Rules. (Caution. Every states rules may differ.)
The accused (or his divorce/child custody lawyer) provides a copy of any documents to the court-martial defense counsel. (Assume the DC was not present at a PO hearing.)
What use, if any, can be made of these records in a court-martial?
As the Bonhomme Richard trial is underway, ProPublica has filed a lawsuit regarding the denial of access to ongoing filings in the Mays case.
ProPublica v. Butler, et. al.
Update. August 19, 2022, NIMJ letter to DoD General Counsel regarding the lack of transparency in court-martial proceedings.
Reporters Committee for Freedom of the Press to Hon. Caroline D. Kress, "Request for access to court records in United States v. Mays and corrected guidance interpreting Article 140a, UCMJ."
Commentary on United States v. Tate.
As his sentence did not include death, a punitive discharge, or confinement for two or more years, the accused was not entitled to automatic review of his convictions by the Army Court of Criminal Appeals (ACCA). See Article 66(b)(3), UCMJ.
A reserve attorney assigned to the Army Trial Judiciary completed the Article 65 review, “found no irregularities with appellant’s court-martial and provided appellant with no relief.” United States v. Tate, ARMY 20200590 at 3 (A. Ct. Crim. App. Sep. 9, 2022). Thereafter, Appellant timely applied for relief under Article 69(a), UCMJ, which provides: “Upon application by the accused and subject to subsections (b), (c), and (d), the Judge Advocate General may modify or set aside, in whole or in part, the findings and sentence in a court-martial that is not reviewed under section 866 of this title (article 66).” (Emphasis added) The Judge Advocate General (TJAG) delegated his Article 69 authority to deny relief “to attorneys assigned to OTJAG-CLD but withheld authority to grant relief to his personal level.” Tate, at 4. An attorney in OTJAG-CLD reviewed Appellant’s case and denied relief.
Appellant sought relief at ACCA, alleging multiple errors, including that the evidence was legally insufficient to support convictions as to two charges. ACCA granted that issue and specified an additional issue: whether it had jurisdiction to review the case when the Judge Advocate General of the Army had “not taken an action outlined in Article 69(c).” Tate, Order (Feb. 10, 2022).
Although Appellant’s brief will not download from ACCA’s website, it is clear from the Government’s brief of March 15, 2022, the parties misunderstood the concern that resulted in ACCA specifying the issue. The Government argued that, regardless of the denial of Article 69(a) relief, as ACCA’s jurisdiction was not dependent on the outcome of the Article 69 review, the court had jurisdiction to consider Appellant’s appeal. It cited and appended two opinions—one Navy, one Air Force—in which the relevant CCA had considered an appellant’s case, although the relevant TJAG had personally denied relief under Article 69(c), UCMJ.
ACCA issued a notice of a hearing in the case to be held on July 26, 2022. Tate, Notice of Hearing (June 6, 2022). Apparently recognizing that the parties misunderstood the specified issue, ACCA issued an amended notice of hearing in which it ordered the parties to “be prepared to address the following question:
The 18 November 2021 ‘Action’ is signed by Lieutenant Colonel JR for The Judge Advocate General (TJAG). What is the legal authority for TJAG to delegate the authority to take action as outlined in Article 69(c), UCMJ, to another judge advocate?” Tate, Amended Notice of
Hearing (July 21, 2022).
After the hearing, ACCA determined that, unlike Article 65, Article 69(c) did not allow TJAGs to delegate the authority to grant or deny relief. As the Army TJAG had not personally acted in Appellant’s case, as required by Article 69(c), ACCA held it was without jurisdiction to hear the appeal.
We expect that ACCA’s decision in this case will be sufficient to induce the Army TJAG to change policy and personally decide whether relief is appropriate in applications for relief under Article 69, UCMJ. If not, an applicant could apply to the CCA for a writ of mandamus, asking it to order the JAG to take action on the case as required by Article 69(c), UCMJ.
Although writs have had a troubled history in the military, recently military appellate courts have looked upon them more favorably. The All Writs Act grants the power to “all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.’’ 28 U.S.C. § 1651(a). The CCAs are such courts. Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999).
The “All Writs Act requires two determinations: (1) whether the requested writ is ‘‘in aid of’’ the court’s jurisdiction; and (2) whether the requested writ is ‘‘necessary or appropriate.’’ United States v. Brown, 81 M.J. 1, 3 (C.A.A.F. 2021) (citation omitted).
Whether the requested writ is “in aid of” a court’s jurisdiction is determined by the scope of the court’s jurisdiction and whether the requested writ implicates the court’s subject matter jurisdiction over the case. Id. The CCAs are courts of limited jurisdiction—limited to the powers specifically granted them by statute. The authority to grant writs is not limited to cases in which jurisdiction has already been acquired. “Potential jurisdiction exists as long as some pathway to the lower court’s statutory jurisdiction remains.’’ Id. at 5. Once TJAG acts, whether to deny or grant some relief, the CCA has statutory jurisdiction under Article 66(b)(1)(D) to grant discretionary review of an appellant’s case.
To show that a writ of mandamus is necessary or appropriate, Appellant must establish three things: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012).
In cases such as Appellant’s, in which the Government did not file an Article 62 appeal and the approved sentence to confinement did not exceed six months, the only avenue for an appellant to obtain review by a CCA is through TJAG: by referral from TJAG or by the TJAG acting on an Article 69(a) application. Article 66(b)(1). As ACCA in Tate correctly held, without TJAG personally acting, as required by Article 69, ACCA is without jurisdiction to hear the appeal. Therefore, without the issuance of a writ of mandamus, there is no other adequate means to attain relief.
The right to the issuance of the writ in such cases is is clear and indisputable: TJAG failed to take action personally on Appellant’s case as required by Article 69, UCMJ. Finally, under all the circumstances, issuance of the writ would be appropriate in such cases.
A military judge, sitting as a general court-martial, convicted Appellant, contrary to his pleas, of providing alcohol to minors on divers occasions; wrongfully distributing marijuana on divers occasions; wrongfully distributing psilocybin (mushrooms) on divers occasions; wrongfully using mushrooms on divers occasions; sexually assaulting a child, GB; behaving in a disgraceful and dishonorable manner that seriously compromised his standing as an officer by wrongfully and dishonorably organizing individuals into a violent gang; wrongfully communicating a threat to AL on divers occasions; wrongfully communicating to MH a threat to injure ME by paying someone to assault ME; receiving consideration for arranging for KW, PW, WK, and other unnamed persons to engage in sexual intercourse with others; unlawfully entering ML's house; sexually assaulting a child, FT; wrongfully threatening to hurt, injure, or kill Captain (Capt) CM; wrongfully threatening to hurt, injure, or kill Special Agent (SA) JG; and wrongfully threatening to hurt, injure, or kill Airman Basic (AB) JS, in violation of Articles 92, 112a, 120b, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 920b, 933, 934.3 The military judge sentenced Appellant to a dismissal, confinement for 25 years, and forfeiture of all pay and allowances. The military judge credited Appellant with 60 days of pretrial confinement credit. The convening authority approved the adjudged sentence.
United States v. Brown, No. ACM 38864, 2017 CCA LEXIS 454, at *1-3 (A.F. Ct. Crim. App. July 6, 2017).
CAAF ultimately denied his petition for review. 78 M.J. 162 (C.A.A.F. 2018). There being no avenue to the Supreme Court. Unlike every other system in the U.S., an intermediate court, the CAAF, acts as a gatekeeper. So off to federal district court went Brown with a habeas petition. He did not fair well in the Ninth. See Brown v. United States, No. 21-55727 (9th Cir. Sept. 20, 2022) (unpub.).
Update. Open to all.
An impressive lineup of SCOTUS litigators.
Appellant Nix was convicted MJA of an assault and battery on his ex-wife, for which the MJ sentenced him to 135 days, RiR, a BCD, and a reprimand.
Appellant raises one assignment of error with six underlying allegations that trial defense counsel was constitutionally ineffective during his representation of Appellant by failing to: (1) object to improper findings testimony; (2) call a defense expert witness; (3) object to admission of incomplete personnel records; (4) object to an improper victim impact statement; and (5) investigate favorable defense witnesses. In addition, Appellant claims (6) trial defense counsel’s “misplaced concern for the named victim amounted to an actual conflict of interest which adversely impacted his representation” of Appellant by withdrawal of a valid objection during sentencing.
Initially the IAC claims items (1) - (5) was a Grosty. The court ordered DC declarations. Upon receipt of the declaration, appellant's counsel added item (6) and also moved the issues from the Grosty table to a merits issue. (Note. This is another case where sometimes a Grosty issue gets the court's attention and sometimes, although not here, gets relief.)
1. Improper findings testimony.
A witness testified about lingering pain and about the appellant's "personal morals." There was no objection. However, the MJ sua sponte said he'd only consider the testimony for the limited purpose of "why the witness remembers the conversation." Even if error, no prejudice on these facts.
2. Not calling an expert.
Update. A commenter has provided the following for consideration.
In Richards, Judge Hardy, writing for the Court, does two main things: reiterate the need for the government to prove every single element of an offense, and provide a framework which practitioners can use to determine if something is prejudicial to good order and discipline. United States v. Richard, __M.J.__, No. 22-0091/AF, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
Some years ago, Air Force Colonel Jeremy Weber turned a masters thesis into a law review article about good order and discipline.
Jeremy S. Weber, Whatever Happened to Military Good Order and Discipline. 66 CLEVE. ST. L. REV. 123 (2017).
If Washington and de Saxe are correct that discipline forms the soul of a military, then the United States military seems to be experiencing a spiritual crisis. Increasingly, the public perceives the military term of art “good order and discipline” not as representing a core principle of military effectiveness, but as rhetorical “chaff” military leaders use to voice their opposition to proposed reforms without actually communicating anything. In recent years, military leaders have employed the term to voice their opposition to a number of proposed personnel, social, and legal military reforms, and they have done so without clearly explaining what good order and discipline is or why it requires a certain position on these policies. In most cases, the military ultimately enacted those reforms without any measurable negative effect on good order and discipline. As a result, the linguistic impact of the term has come under fire from Congressional leaders and the media. This battle over the meaning and weight of the good order and discipline rationale has played out most recently in calls for military justice reform.
His statistical research shows that the term is often stated or used but that it defies definition. He explores the root of the term going back to the Seventeenth and Eighteenth centuries. As one of his purposes for examining the current state of UCMJ art. 134 prosecutions he says that,
This Article then ties the developments regarding Article 134 to a larger issue: the military’s difficulty in defining what good order and discipline means. To address this situation, this Article proffers a comprehensive definition of the term that military leaders can use to specifically ground their positions and proffers that the military justice system can better specify what conduct is and is not prohibited under Article 134.
In developing that theme he reviews military and Supreme Court decisions challenging prosecutions under Article 134 and concludes,
However, persisting issues continue to raise the question of whether the contours of the “good order and discipline” term are really understood, or, as the dissent [in Parker v. Levy] held (sic), whether the military has changed to the extent that good order and discipline now represents a nebulous concept.
He gets us to one "limitation" in the Manual for Courts-Martial under Article 134(1) that the conduct have a "reasonable and palpable effect" on good order and discipline--a limitation perhaps ignored in trials. He recognizes this still does not define what actions can be prejudicial in many cases rather it's an attempt to give weight to the severity of the conduct. The article is a good read, especially as Judge Maggs has given it a bit of currency--he cites Weber's article in his (and Judge Stucky's) concurring opinion in United States v. Richard, __ M.J. ___, No. 22-0091/AF, 2022 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
Is there a volunteer to do a case review for us (anonymous even)? We don't want to write more ourselves because we are in the middle of a brief on this very issue.
Submit a draft to firstname.lastname@example.org.
Update. A commenter notes.
There is another, albeit more subtle, takeaway from Miner. It is a dual blast arising in Gideon and Strickland, to the defense leadership of all of the Services Defense Counsel functions. With actual trials in courts-martial going the way of the dodo bird, experienced counsel (with supervisory responsibilities) have likewise significantly declined.
In Miner, the court finds IAC and in the process names one of the DC (the more experienced one).
Appellant was represented by two captains assigned to Trial Defense Service (TDS) at Fort Polk, Louisiana. The Senior Defense Counsel, Captain (CPT) Delta, detailed himself to the case but subsequently detailed a subordinate junior defense counsel as appellant's first chair attorney. This was the first trial the subordinate defense counsel had served as a first chair attorney and only the second trial in which the subordinate attorney had any responsibilities. Leading up to the trial, the attorneys worked as a team, although CPT Delta took a greater role in preparing for the pre-sentencing proceedings, while the subordinate defense counsel focused on the merits phase of appellant's court-martial, under CPT Delta's
Having laid out the law of IAC, ACCA gets to the nub of the issue which, as we know, often comes down to prejudice.
The hard question before this Court is not whether appellant's counsel were ineffective in several areas (they were); but rather to assess the level to which their failures prejudiced their client. In order to analyze what, if any, prejudice occurred in this case, we will first discuss the three witnesses the defense presented and we will next turn to the possible exculpatory defense witnesses that were not presented as contrasted against the government evidence.
Query: is the court implying the Government or investigators knew but there is an underlying Brady-Plus issue? Anyway,
It appears the defense (and I suppose investigators) never interviewed Appellant's next door neighbor and the one across the hall. At the Dubay
Specialist DW described the layout and acoustics of the rooms, stating he could generally hear "everything" in appellant's space, to include appellant brushing his teeth and cooking meals. Specialist DW was present in his room on the night of the alleged assault and was awake until approximately 0400 because he suffered from untreated insomnia.
While there are lessons here for DCs, I think too TCs can learn something. This comes from two questions: why did CID not interview the neighbors or why did not the TC arrange for CID to interview them? It seems obvious that the neighbors should have been interviewed. That seems a relevant investigative step--looking for witnesses who may have seen or heard something. True, canvassing interviews do not always produce useful information, but as the Dubay hearing here showed and as ACCA discusses, the neighbors did have relevant testimony. As a trial counsel I would want to know that.
Over the transom today,
Michelle Grisé, Meghan Ballard, Kirsten M. Keller, Julia Vidal Verástegui, Justice Must Go On: The Effects of the COVID-19 Pandemic on Military Court Operations. Perspective, RAND Corporation, September 2022.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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