United States v. Pyron, stems from a rehearing after the case had been set aside because of a member issue. Original NMCCA published opinion, 81 M.J. 637 (N-M Ct. Crim. App. 2021) here.
This case stems from an interlocutory appeal under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2018). At a rehearing in this case, the military judge denied the Government’s motion to admit Appellant’s testimony from his original court-martial. We hold that the military judge abused his discretion by excluding this evidence. Because the United States Navy-Marine Corps Court of Criminal Appeals (CCA) reached the same conclusion, we affirm the judgment of the lower court.
What was the Government action? A member in the first trial had given answers in voir dire suggesting his having a daughter may affect his decision making. Yet neither party nor the MJ followed up on that. Later,
As the CCA noted in its decision, “neither trial counsel nor the military judge asked any further questions of LT Alpha” to rehabilitate him. Id. And yet later in the process, “the trial counsel [mistakenly] made arguments regarding the [defense] challenge for cause that suggested a rehabilitation colloquy had been conducted, and the military judge adopted those incorrect facts and based his denial of the [defense] challenge [for cause] upon them.” Nevertheless, the CCA did “not find that the trial counsel intentionally misled the military judge as to LT Alpha’s answers.” Instead, the lower court found that trial counsel made an “honest mistake.” But because of this prejudicial error, the court set aside and dismissed the findings and sentence and authorized a rehearing.
The question then becomes whether the "error" at the first trial is the type of prosecution misconduct that resulted induced Appellant's testimony at the first trial. Here is the nub of the answer.
There is a “general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.” Harrison, 392 U.S. at 222). As explained by the Supreme Court:
The Chief concludes that the TCs mistake is not the type of illegal conduct contemplated in the Harrison exception. It seems that
"in United States v. DeWitt, this Court’s predecessor definitively refused to extend the Harrison exception “to instances . . . where there is no primary illegality on the part of the Government’s” agents. 3 M.J. 455, 456 (C.M.A. 1977)."
DeWitt was a UA case. The appellant had unsuccessfully challenged admissibility of the Army form recording that he was absent from a certain date and time. He then changed his plea to guilty. However, the MJ rejected the guilty plea. So, it became a NG case again. At this point, the prosecution offered his statements made in response to his guilty plea along with the form and gained a conviction. On appeal CMA held it error to admit the form but found sufficient evidence from the providence (in court under oath) statements to sustain a conviction.
Because it was a judicial error in admitting evidence that caused the testimony
"Such lofty motive as prompted the Supreme Court in Harrison and this Court in Bearchild would not be served by extending this doctrine to instances such as this case, where there is no primary illegality on the part of the Government’s investigators."
Fn. 3 cites two federal cases with a similar result--judicial errors are not primary illegality of the prosecution.
In Pyron II we have a combination--a TC who was wrong about the voir dire of one member and whether he had been rehabilitated, a defense counsel who did not point that error out, and a military judge who had forgotten (or not noted) that the TC was wrong and so did not correct the error.
A collateral point from Pyron II would be that of situational awareness.
Sr. Judge Crawford was the sit-in judge for this unanimous opinion.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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