Court of Appeals for the Armed Forces

2/10/2023

As expected, a writ appeal petition has been docketed for In re MW. I was going to post about this and discussions among some of us a few years ago about when might it be appropriate to try and have a military judge declare an SVC as a de facto party to the court-martial (and thus subject to R.C.M. 701 and Brady). We were sanguine about the motion getting off the ground. In re MW may move the ball a little--but let's see what CAAF does.

Don Rehkopf

2/11/2023 14:34:18

Some of us predicted this precise scenario would arise, i.e., that TC and SVC would "gang up" on the defense. Only here, in addition, the purported victim (having her own detailed defense counsel for reasons not made clear) had her ADC join in the affray.

I know of no common law jurisdiction where this could or would be allowed. Yes, some jurisdictions permit SVC's to sit in, but to act as "advisors" or "co-counsel" to the TC? And then there is the more troubling issue, is this "grant of power" to alleged victims (after all, the accused remains presumptively innocent until proven guilty BRD) constitutional under our adversarial system?

Tough questions, but they need to be answered and hopefully some amici will chime in if CAAF agrees to review the case at this stage.

Philip Cave link

2/11/2023 14:47:17

And, at what point, if any, does collaboration become a waiver of any privilege the SVC has? The TC is after all a third party to the privilege as would be the DC or any other person?

Don Rehkopf

2/11/2023 15:03:19

Very good point Phil.

Don Rehkopf

2/11/2023 15:24:14

Upon further reflection, should the style of the case reflect the actual status, e.g., "U.S. ex rel. MW v. Military Judge?" https://www.law.cornell.edu/wex/ex_rel.

Tami Mitchell

2/11/2023 16:42:10

This is becoming ridiculous. Article 6b doesn't confer a general "right" to a complainant to confer about every single matter that impacts the court-martial. A complainant has no right to provide input on panel member selection/challenges. I would argue that disclosure of a complainant's position on panel member challenges is a waiver of privilege, again, the complainant has no "right" to confer with trial counsel on challenges to panel members. Panel member selection isn't a personal right of the complainant.

While I agree that the Government should be able to litigate the issue, I think ultimately, the rule needs to be that attorneys on the complainant's behalf (whether VLC or ADC) are excluded from decisions regarding panel-member selection, necessarily included challenges for cause. Challenges for cause have nothing to do with a "victim's rights."

If victim's counsel was conferring with trial counsel on a matter of the complainant's privilege, or some other matter actually included in Article 6b, UCMJ, then that would be a different matter. But last time I read the constitution and Article 6b, UCMJ, there is no "right" to confer with trial counsel on a matter not involving the complainant's rights, and between the complainant and the accused, the accused's rights have to take precedence.

Don Rehkopf

2/13/2023 10:38:48

Upon further thought, there are some serious ethical issues here. Specifically, have the SVC and the complainant's DC harmed their client? Meaning, by not protecting their respective attorney-client privileges by implicitly waiving them by having 3rd parties present during conversation, is any privilege forfeited within the parameters of the unprivileged discussions?

Can the Accused's DC now ask the Complainant about the contents of the "group" discussion on panel members? Did the government give the Complainant testimonial immunity here, because she wouldn't have her own DC unless she also was exposed to at least a threat of prosecution. Absent immunity, why would any DC allow his/her client to talk to any TC, unless there's a PTA requiring cooperation as a condition of any deals.

Are the SVC and DC subject to Dereliction of Duty issues for failing to exercise their respective duties to protect their attorney-client communications from discovery? But, there is also a parallel duty of confidentiality between the attorney and her client.

There is a very instructive (albeit a tad dated) article that addresses many of these problems from the perspective of a SVC, which is a good starting point, see MAJ David Thompson, "Truth or Dare? An SVC’s Dilemma in Handling a Client’s Potential Falsehoods, " 2019 Army Law. 69 (Issue 4).

Laissez Faire

2/14/2023 00:32:13

I'm a bit confused about all the agitation here. What exactly is the UCI? Don, you say this wouldn't be allowed in any common law jurisdiction--but in what jurisdiction would it be barred? If a DA were to turn to his police investigator buddy in the gallery and ask "who do you think we should kick?" what are they going to get in trouble for? I feel like I must be missing something big and obvious in civilian practice.

Certainly, such a conversation is unprivileged, and so the remedy of discovery may be appropriate--and a counsel who blithely reveals critical communications in that context may be derelict. But, facially, it doesn't seem like that happened here.

I suspect, based on experience, while there's a great deal of posturing around 6b, in fact all that's going on is a bunch of junior O3's asking each other "who do YOU think is the sexist-racist in hiding?" because they're all shooting in the dark, and it's voir dire, so who the eff knows?

Agreed

2/14/2023 12:56:45

Agree with you 100% on everything you stated.

Also don’t understand how asking another party their thoughts on voice dire makes that party part of the prosecution team. If Brady material is disclosed to the prosecutor in these conversations, that material has to be turned over by the prosecutor. And as you noted, the prosecutor may now have opened up a discovery Pandora’s box.

The defense attorney’s on this board seem to either want a complete bar between government counsel and SVC communicating (a likely violation of the 1st amendment) or the SVC being declared part of the government team (which ignores that the government and SVC often have different interests).

Finally, as the opinion noted, the judge has the ability to control the decorum of the court room. This could cut down on the note passing/whispered conversations (and frequently does so even when those notes are passed between people on the prosecution team but in the gallery).

The other commentators are just reaching because they don’t like SVCs.

Nathan Freeburg

2/14/2023 13:28:26

I love SVC/VLCs as they greatly increase the acquittal rate. But if they are assisting the prosecution with VD then they are acting as prosecutors which as a matter of constitutional law means they are subject to disclosing all Brady material they know about (which could mean violating attorney client privilege). You can’t have AC privilege with a client and be a prosecutor. It is the State v. an Accused. Not private party v. an accused.

Tami Mitchell

2/14/2023 14:26:51

@Agreed: I used to be an SVC, and was all for zealous representation of my clients. But Article 6b provides LIMITED standing to alleged victims, and by extension, that LIMITED standing also applies to their lawyers, whether they are defense counsel or SVCs/VLCs, etc.

The panel isn't the alleged victim's--she has no standing to participate in any decisions about challenges for cause, or peremptory challenges. By participating in the discussion with trial counsel about voir dire and challenges, the SVC turns into another trial counsel. This has been the concern since LRM v. Kastenberg. What troubles me is SVCs pushing the limits of their representation, and exceeding their limits, as what happened in this case. And it seems like only recently the courts have been enforcing these boundaries.

Perhaps the solution is to excuse the affected members (with the accused's consent) and then assuming quorum is busted, the convening authority has to appoint new members. Potentially also the MJ could prohibit the SVC and ADC
and trial counsel from conferring about matters that the alleged victim has no standing for input or argument. Also maybe barring SVC and ADC from watching the court-martial, except for when their client testifies, or when something pops up implicating their client's rights (such as privilege or MRE 412)?

Agreed

2/14/2023 14:40:54

@Tami: What is the test for when a third-party attorney becomes a functional member of the prosecution team? I don't think Kastenberg addresses that, but feel free to correct me. Again, there probably is a line somewhere but does any jurisdiction have case law on this?

And I will ask you the same question I asked Nathan: If an SVC is aware that a voir dire member is lying (say about a relationship with a victim or the accused) can the SVC alert the prosecutor? Or is that making the SVC a part of the prosecution? The bright line rule the defense is asking for in this case would seem to block that.

If the SVC is representing the government (ie. making the decisions on who to boot) then I agree the issues that you have raised are relevant. But the SVC merely providing input with the final decision resting with the trial counsel does not seem to be making the SVC part of the prosecution to me. If there is caselaw I am not aware of, I would be happy to read it. And again, I think these conversations could open up a discovery nightmare because nothing would be privileged.

Nathan Freeburg

2/14/2023 00:44:44

LF: I tend to agree with you that UCI is not the right lens to look at this (though I can’t rule out that it might somehow be an easier appellate approach), The issue, as the original post alludes to, is that if the SVC/VLC is part of the prosecution team (which is clearly what happened here), than the Constitutiional jurisprudence regarding Brady and discovery apply (as it would with your police investigator buddy) to the SVC/VLC. Mull on the ramifications of that.

Agreed

2/14/2023 14:15:51

I can't respond to your comment above about the SVC acting as the prosecution if they assist with VD, but two questions:
1. Is there any caselaw from any jurisdiction on when a third-party's attorney becomes a functional part of the prosecution team? Or are we operating in terra incognita? I am not saying it can't happen, but is there a test anywhere? Blocking a third-party from talking to a prosecutor raises signifiant first amendment concerns and should not happen lightly. .
2. If an SVC is aware that a voir dire member is lying (say about a relationship with a victim or the accused) can the SVC alert the prosecutor? Or is that making the SVC a part of the prosecution? The bright line rule the defense is asking for in this case would seem to block that.

Don Rehkopf

2/14/2023 15:34:31

Agreed:
1) there is considerable federal case law in the Brady / Kyles context of when a 3rd party is considered part of the prosecution "team." The same standard should apply here.

2) The SVC, as an officer of the Court has an absolute obligation to alert the Court of perjured responses - whether that could be ex parte is doubtful, but nevertheless the duty is to the tribunal, NOT to counsel.

There is no First Amendment issue as this is not a "Free Speech" or "Right of Association" issue.

Agreed

2/14/2023 15:47:47

(1) sure. But not analogous to this situation with a third party attorney. Can you provide? I would be happy to read.

(2) maybe they have an ethical duty to the tribunal. But that is changing the issue. Can they tell counsel?

(3) re-read the first amendment. There is another clause. A rule that prohibits a victim’s counsel from having any contact with government counsel likely violates the petition right.

Lazy Fare

2/14/2023 23:26:30

NF: Certainly agree that the "prosecution team" and Brady question deserves mulling. So let's mull!

First, VLC/SVC are acting as personal attorneys, like Defense counsel, so I don't think it's reasonable to consider them a State instrumentality under the current construct (and in so much as the same ethics rules apply to a civilian or military DC, I would assume the same for a civilian or military SVC). So in that sense, we should focus on whether the conduct sufficiently intertwines them to the "prosecution team". And sadly, it's the case law is not clear, even for other *investigating agencies*. "The extent to which knowledge may be imputed from one federal investigative agency to another for Brady purposes is as yet unclear." US v. Bin Laden, 397 F.Supp.2d 465, 484.

11th Cir., applying Brady to a "prosecution team" describes it as "the prosecutor and anyone over whom he has authority." US v. Meros, 866 f.2d 1304, 1309. Other circuits, in imputing constructive knowledge in Brady, ask whether the 3rd party is acting on the Gov't behalf or under its 'control' and the extent to which they're part of a 'team' participating in a joint investigation or sharing resources. (e.g., State and Federal LE). See US v. Risha, 445 F.3d 298, 305., US v. Antone, 603 .2d 566. US v. Meregildo (NYSD) has a nice breakdown at 920 F.Supp.2d 434, 441-2. "At its core, members of the team perform investigative duties and make strategic decisions about the prosecution of the case." Interacting with team is not enough--under the totality of the circumstances, the more involved they are, the more likely they're team members. US v. Stewart, 323 F.Supp.2d 606, 616-618. Surprisingly, reviewing the cases, it looks like they don't automatically impute team status to every investigating agent/actor who worked the case.

Another analogy (especially apropos here) is where a witness testifying under a grant of immunity has a CDC, who assists with getting productive/effective testimony/cooperation out of the witness, and then also provides advice/input to the prosecutor, based on their experience. They're assisting the prosecution, and likely even rooting for the same outcome (as effective testimony leading to a conviction would be great for clemency, say), but I suspect that there's almost no way a Circuit would consider them part of the "prosecution team" and impute constructive knowledge for Brady purposes--possibly primarily because even if the Gov't has leverage over the witness, they do not "control" or have "authority" over the CDC.

In that light, it's worth noting that the Circuits have generally not held cooperating witnesses are members of the team. "Courts generally agree that the prosecutor's obligations do not extend to agencies that are not law enforcement agencies, even though they may furnish some information to the prosecution. The same is true of private parties." US v. Lujan, 530 F.Supp.2d 1224, 1231.

In light of all of the above, I'm inclined to think that giving advice on voir dire kicks from peer counsel (or from a buddy in the gallery) who have similar interests in the case is unlikely be enough to make them part of the prosecution team.

None of that is to say that it's a *good* idea to shield SVC from Brady obligations. I just think under the current construct and case law, it generally wouldn't apply, even if they're advising the prosecution.

Nathan Freeburg

2/15/2023 03:07:51

LF: Agreed that it's going to be fact-specific. Three points:

1. With regard to the Meregildo standard...if the SVC/VLC gets a "vote" as to challenges (for example) is that involvement in making a strategic decision? I suppose it depends.

2. To what extent does it affect the analysis that the TC and SVC/VLC ultimately have the same boss, the same employer and move back and forth between the same jobs. There is simply nothing analogous in civilian life. That, to me, makes the case stronger for a firewall between the two, not weaker.

3. As a policy matter, why would the SVC/VLC programs want to even create this issue? A simple bright line rule of "folks, you're not prosecutors, don't get involved with the nuts and bolts of the prosecution" would protect their counsel. (And, no, I don't think there is anything wrong with an SVC/VLC giving feedback to the prosecutors after the case is over.)

Don Rehkopf

2/14/2023 12:02:09

LF: If you know of a jurisdiction that assigns a lawyer to a purported victim other than the military, please enlighten me. Federal Courts and the State courts which I've practiced in give the complainant a "victim-witness advocate," [VWA] who at best is a paralegal. I have personally had VWA's removed from a court-room for passing notes to the prosecutor, giving signals to the "victim" during cross-examination, and admonished for other misconduct, e.g., telling my client's family that they couldn't sit in the front row of the galley.

The example of the "police investigator" for the prosecutor is, with due respect, inapt. The lead investigator from law enforcement is part of the prosecution team, indeed, frequently sits at the prosecution's table.

Taking a step back, when the military first created (and now expanded) the SVC program, it's concept was fundamentally flawed as this case now demonstrates. The ABA's Criminal Justice Standards, "The Prosecution Function," Std. 3-1.3, is entitled, "The Client of the Prosecutor," and reads in relevant part:

"The prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim."

Std. 3-3.4, states in relevant part:

"(b) The prosecutor should know and follow the law and rules of the jurisdiction regarding victims and witnesses. In communicating with witnesses, the prosecutor should know and abide by law and ethics rules regarding the use of deceit and engaging in communications with represented, unrepresented, and organizational persons."

The crux of the issue here, in my opinion, comes from subparagraph (i):

"(i) Consistent with any specific laws or rules governing victims, the prosecutor should provide victims of serious crimes, or their representatives, an opportunity to consult with and to provide information to the prosecutor, prior to making significant decisions such as whether or not to prosecute, to pursue a disposition by plea, or to dismiss charges."

Determining which (if any) members should be challenged does not in my opinion fall within the penumbra of "significant decisions," as that is solely a function of the Trial Counsel. For a detailed analysis of this, see Gershman, Prosecutorial Ethics and Victims' Rights: The Prosecutor's Duty of Neutrality, 9 Lewis & Clark L. Rev. 559 (2005), http://digitalcommons.pace.edu/lawfaculty/122/.

Hope this helps.

Lazy Fare

2/14/2023 23:40:44

Don: I believe some colleges are starting to use VLC, but I'm not aware of any criminal jurisdictions with assigned SVCs. And am I surprised you've had to beat back VWAs into their corner?

But to get back to my query (when you'd said no jurisdiction would allow this)--my basic gist was this--the prosecutor asks someone, outside the prosecution team, for advise on a case decision (voir dire). Instead of policy buddy, let's just say it's Courthouse Janitor Karl. What common law jurisdiction is going to fry the prosecutor for that, and on what basis?

I appreciated your link to the Prosecutorial Ethics article, and I agree that if they simply cede their authority and duty over to the SVC we have a violation of their ethical duties, but I don't think that consultation on perceptions in voir dire facially meets that threshold.

That all said, I get the sense from the tone of comments here that many are afraid of how assertive and powerful victims/SVCs have become in the system, and as a broad general matter, people feel there's an erosion of the "Client of the Prosecutor" standard. While I don't think that's a critical issue in the MW case, I don't disagree it's a cause for unease and concern across the practice, with too much ready deference to the alleged victim.

Nathan Freeburg

2/15/2023 02:55:57

LF: No one is saying that the prosecutor can't ask others for advice or input (at least I'm not). The question is, at what point does the SVC/VLC's interaction with the prosecution make them part of the prosecution? And to the extent that the SVC/VLC remains a third party, does that waive attorney work product for anything revealed to them by the prosecution?

Philip Cave link

2/14/2023 15:31:46

LF. There is no case law.

When four/five years ago we were discussing this issue, the idea of creating a system of SVCs as "private prosecutors" popped into mind. An old concept. The idea died because the courts were acting as an appropriate bulwark and there did not seem to be a good set of facts developing.

Prof. Capers talks about private prosecutions here: https://live-cornell-law-review.pantheonsite.io/wp-content/uploads/2020/11/Capers-final.pdf

Over the last few years SVCs, especially AF, have been quite litigious in areas beyond 6b. That's a sign of mission creep if nothing else. And we all know that mission creep can become a central mission. MW tweaked my interest again. For further thoughts, see

https://californialawreview.org/victims-rights-revisited/

https://californialawreview.org/private-prosecution-of-rape/

https://californialawreview.org/victims-as-a-check-on-prosecutors-a-comparative-assessment/

As to the SVC who knows a member lied, I think the better course would be to bring it to the attention of the MJ rather than only the prosecutor. That would be better optics methinks.

Oh, and I don't see UCI as an issue here.

Lazy Fare

2/14/2023 23:44:27

Thanks for the interesting historical note re "private prosecutors" and the articles! The context the Capers article provides regarding the recent consideration for SVCs is fascinating.

Donald G Rehkopf, Jr.

2/15/2023 12:21:12

In addition to the articles Phil cites, check out this link which includes those as well as others. Notably, at least imho, none discuss the militarys' approach. And FWIW, nice to see some civil, intellectual sparring back here.

https://sentencing.typepad.com/sentencing_law_and_policy/2023/02/against-prosecutors-and-a-lot-of-notable-responses-thereto.html

Nathan Freeburg

2/14/2023 16:08:49

1. As Don noted, there absolutely is case law about when someone becomes part of the prosecution for Brady purposes, albeit not-third party attorneys (to my knowledge anyway) because they so rarely exist.

2. In civil litigation, there is case law dealing with third parties with interests in the matter and when they could become actual adverse parties with discovery obligations (I dealt with this in a prior life). If I ever have to litigate this issue, I would look to this area of law for some guidance.

3. The issue is when the SVC/VLC is making recommendations to the prosecutor as to who to challenge, murderboard their closing, etc....that's when they become functionally part of the prosecution team. In my experience, when an SVC/VLC detects an issue, they alert counsel for both sides and then we ask the judge for an 802. Easy Peasy.

4. Phil is right that this is primarily (but not exclusively) an Air Force issue.

5. The limits of Article 6b and who actually calls the shots at trial comes up in the Marine Corps double jeopardy case of U.S. v. Murillo (linked a couple posts back on CAAFLOG) -- full disclosure, I'm the CDC in the opinion.

Nathan Freeburg

2/14/2023 16:17:45

I want to be very clear. I am completely supportive of any person having an attorney (I've had friends called to testify as witnesses in federal grand juries or in federal trials and recommended that they retain counsel just to protect their interests even though they weren't the subjects). And if the military services want to destroy rapport between complaining witnesses and prosecutors by adding an attorney between at government expense (and eliminate their bench of experienced counsel to try cases), so be it. Not my problem. (Other than that it's good for my clients.). But when they are assisting prosecutors with tactical decisions and case strategy, that is assuming a prosecutorial function.

Nathan Freeburg

2/14/2023 16:28:55

1st Amendment:

1. Attorney speech is about the most heavily circumscribed form of speech. 30 seconds on scotusblog and you'll realize I'm right.

2. Every day I'm told client confidences. As a result, every day my 1st Amendment rights are abridged.

3. Finally, if a third party attorney functionally joined the prosecution team, the fact that they now owe discovery obligations and will have to violate their attorney-client privilege with their client isn't an abridgment of their 1st Amendment rights..it just means that using their 1st Amendment rights may have, ahem, unintended collateral consequences....

Don Rehkopf

2/14/2023 17:23:05

One additional 1st Amendment point, Agreed, if you're referring to the right to Petition for Grievances, that has nothing to do with this issue. That right comprehends demands for an exercise by the government of its powers
in furtherance of the interest and prosperity of the petitioners
and of their views on politically contentious matters. See, e.g., John Doe No. 1 v. Reed, 561 U.S. 186 (2010)[especially J. Scalia's concurrence]; and
McDonald v. Smith, 472 U.S. 479, 484 (1985).

Lastly, you might want to study United States v. Giglio, 405 U.S. 150 (1972), where a trial witness denied any promises of leniency for his testimony. Unknown to the Prosecutor trying the case, another prosecutor in the same office had indeed made such a promise. Thus, it is clear that in this context, one "government" attorney can bind another.

Anon VLC

2/14/2023 20:18:19

Hopefully, CAAF grants a hearing so the filings are available in this case. Facts seem to be missing allowing a lot of supposition and conjecture.

Donald G Rehkopf, Jr.

2/15/2023 12:25:52

Anon - totally agree with both you and brother Phil.

Philip Cave link

2/14/2023 20:30:38

Hah. If there were a PACER we'd have them now.

https://www.nimj.org/caaflog/dod-general-counsel

Tami Mitchell

2/15/2023 13:39:08

@Agreed, to your first question about case law, I think the dissent in LRM v. Kastenberg is instructive, when the SVC engages with TC on a matter in which the alleged victim has no standing, the SVC becomes a member of the prosecution team. In this case, the discussion went beyond consulting w/ the SVC about voir dire, it was about gauging which members were favorable to the alleged victim. The alleged victim isn't a party to the case, and therefore has no right to participate in the voir dire process or challenge for cause. Additionally, there is In Re KK, where the AFCCA appropriately held the alleged victim doesn't get to challenge every ruling she disagrees with.

I agree the Air Force is the most litigious service regarding SVC involvement. I reviewed a case where the SVC is even participating in reviewing questions posed by panel members--that also crosses the line. Most VLCs in the Navy will not permit defense counsel to interview their clients, which I think raises ineffective assistance of counsel issues related to conducting an investigation into the accused's case.

It's time to start pushing back on SVC participation to ensure they stay in their lane--their clients have LIMITED standing, and the right to participate in part of the proceedings doesn't allow participation in all of the proceedings. An SVC who crosses the streams (so to speak) takes the risk of being tagged with taking on a prosecutorial role, and possibly end up getting kicked off the case, though I think that would be a measure of last resort.

On the one hand, I think CAAF will deny the petition as being moot. On the other hand, I could see CAAF granting review to address the limits of SVC participation under Article 6b, and holding that a "right to confer" doesn't mean the SVC gets to confer with trial counsel about anything and everything.

As for the question of what an SVC should do if he/she knows a panel member is lying, alert the military judge and let the military judge address it.

Anon VLC

2/15/2023 14:08:44

@Tami - LRM v Kastenberg was decided before the codification of Article 6b, so, arguably, largely inapplicable to the issue of standing/jurisdiction on victims rights. KK seems to weigh in favor of victim litigation to appellate courts, as AFCCA highlights the text of 6b says "when a victim believes" a right is violated she can petition. It also seems as if the argument of mootness was made, yet CAAF granted a stay in MW. Should be an interesting outcome.

Tami Mitchell

2/15/2023 16:26:26

@Anon VLC, I understand Kastenberg was decided before Article 6b was enacted, but the dissent's points are still well-taken and applicable, because the issue of and SVC "conferring with" trial counsel about panel member selection is outside the scope of Article 6b. It's outside the scope because it's not "reasonable" for an SVC to participate in a strategic decision that belongs to the parties (and remember, the alleged victim is not a "party") and doesn't implicate an alleged victim's "rights." An alleged victim doesn't have a "right" for a panel to be comprised of members favorable to her.

I saw that CAAF granted a stay, with Judge Maggs dissenting from that decision. I agree it should be an interesting outcome.

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