An argument too far

Civilian defense counsel, implied that HN Sierra’s testimony was influenced through trial preparation. He asked nine questions implying trial preparation had affected her testimony. Appellant attempts to distinguish Norwood, asserting that the cross-examination focused on testimony being consistent with a narrative created the morning after the assault. The C.A.A.F. rejected a similar temporal argument in Norwood. Appellant opened the door to these prior consistent statements through this line of questioning.
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Our superior Court has held that when defense counsel implies improper influence on the victim through trial preparation, the Government may offer consistent statements made before trial preparation. In United States v. Norwood, the Court of Appeals for the Armed Forces [C.A.A.F.] found a victim’s videotaped forensic interview admissible under Mil. R. Evid. 801(d)(1)(B)(i). The C.A.A.F. found that the prior statements were admissible because of the implication that the victim had been coached.

​My client was violated not only on 2 November 2019, but at each and every turn during the trial as the defense objected to her testimony, cross-examined her, allowed the Accused to perjure himself, and attempted to strip her of her opportunity to provide a full victim impact statement.

While Congress and the President have afforded greater leeway for crime victims’ submissions post-trial, and that due process is satisfied by permitting an accused notice and a response, we cannot countenance attacks on constitutional rights by trained legal counsel. A victim cannot include in an unsworn statement that which a trial counsel could not argue. A VLC likewise, cannot not make arguments that a trial counsel could not.
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This ill-conceived attack—on the exercise of constitutional and regulatory rights (under the supervision of a military judge), and an unsubstantiated ethical accusation—was two sentences in an otherwise admissible three-page submission. The brief argument resulted in no substantial prejudice, considering that the only relief requested was a favorable recommendation to the clemency and parole board.

Timing might be important

​On 13 August 2018, Congress passed the National Defense Authorization Act for Fiscal Year 2019 [NDAA 2019]. Section 532 of NDAA 2019 included a new punitive article, Article 128b, which covered certain domestic violence offenses. NDAA 2019 provided that this new provision would take effect on 1 January 2019. However, the offense underlying Specification 1 of Charge 3, Appellant’s assault upon Mrs. Mike, occurred on or about 1 August 2018. The Ex Post Facto Clause found in Article I, Section 9, of the Constitution, has long been interpreted to prohibit laws that: (1) criminalizes acts that were not criminal at the time they were committed; (2) aggravates a crime or makes it greater than it was at the time it was committed; (3) imposes additional punishment for a crime that would have not been so punished at the time committed; or, (4) changes the rules of evidence that require less or different evidence to convict than would have been required at the time the act was committed.

​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.
. . .
​The Government then moved to admit Appellant’s testimony from his first trial under Military Rule of Evidence (M.R.E.) 801(d)(2) as an admission by a party opponent. Citing the standards imposed by relevant case law, the Government argued that the “testimony was not induced by the Government’s use of wrongfully introduced evidence nor was it the result of ineffective assistance of counsel.” The defense opposed the Government’s motion, asserting that Appellant’s prior testimony “was induced by the Government’s actions and it [was] unfairly prejudicial.”

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.

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:

     A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.

However, the Supreme Court announced an exception to this general rule: If the government engaged in illegal conduct and this conduct prompted the accused’s testimony, the government may not use “any testimony impelled” by this illegality because it is “the fruit of the poisonous tree.” Id. Thus, under Harrison, an accused’s testimony at a prior trial is admissible at a subsequent trial unless (1) the government engaged in illegal conduct at the first trial, and (2) the government’s illegal conduct induced the accused’s prior testimony. See id.

​Courts-martial numbers continued their slide downward in FY22. In total the services completed 1,179 general and special courts. That is down from 1361 in FY21 and 1542 in FY19. For more historical perspective in FY15, the total was 1940, FY00 it was 4824 and FY90 was 9907. In FY60 the services completed 40,810 generals and specials.  

There were 670 GCMs and 509 SPCMs compared to 827 GCMs and 534 SPCMs in FY21. There were a total of 169 acquittals for a conviction rate of 86%. Only 283 courts were with members meaning 76% of all courts were judge alone.  

Numbers by service:

The Air Force completed 161 GCMs and 153 SPCMs. There were 43 acquittals for a conviction rate of 86%. For GCMs the conviction rate was 77% up from 55% in FY21. The Air Force had 113 member courts or 36%, which is the highest percentage of members courts of any of the services. The Air Force has 21 active duty judges. The report does not list the number of Reserve judges. This means there were 15 courts a year for each active duty judge. Of those, only 5 were with members.

The Air Force has 83 ADCs and 18 CDCs. The average ADC did 3.8 courts with 1.3 before members. The average ADC had .5 acquittals last fiscal year. Considering the ADC position is viewed as the place where Air Force JAGs get the litigation experience needed to become senior defense and trial counsel, this is worrisome. Additionally, civilian defense counsel or circuit defense counsel likely do most findings arguments. It seems probable that the average Air Force JAG will leave the ADC position without ever presenting a findings argument, especially before members. The Air Force completed 4183 Article 15s or about 50 per ADC. 

There are 23 CTCs which works out  to 7 GCMs a year if every GCM has an CTC detailed to the case. Highly unlikely. 66 of the GCMs were before members. That comes to 2.8 members GCMs per CTC in a year.  The Air Force has 1318 active duty JAGs with 580 captains and 367 majors, which averages out to .3 courts a year for a O-3/O-4 JAG. Of course, not all O-3s and O-4s are doing courts, but it does give perspective on litigation workload in the JAGC. By comparison, in FY90 the Air Force had close to the same number of JAGs but completed 1480 GCMs and SPCMs.

The Army completed 478 GCMs and SPCMs with 64 acquittals for a conviction rate of 87%.  242 of the courts were GCMs and 129 were SPCMs. 107 of the courts were before members or 22%. 153 of the cases were fully contested, 49 were mixed pleas and 276 were guilty pleas. I wish all the services provided this data, but this means it's possible to see the conviction rate in fully contested courts. When the accused pleaded not guilty to all charges in FY22, they were acquitted 42% of the time. The Army has 142 TDS JAGs, so this is basically one fully contested case a year per TDS attorney.  The Army had 24 active duty trial judges and 22 Reserve judges. I have no idea how often Reserve judges preside over Army cases, so it is difficult to figure out their workload. The Army has 1740 active duty JAGs with 543 majors and 896 captains.

The Marines did 206 GCMs and SPCMs in FY22 with 38 acquittals. The overall conviction rate is 82%. 93 of the courts were GCMs and 113 were SPCMs. Only 28 or 14% of the cases were before members. The Marines had the lowest percentage of members courts. I could not find the total number of defense counsel in the Marines, but the Marines have 72 JAGs who appear to act as trial counsel. If accurate this means about 3 courts per year for the average trial counsel.

The Navy did 181 GCMs and SPCMs in FY22 with 24 acquittals. The overall conviction rate was 87%. 81 of the courts were GCMs and 100 were SPCMs. The Navy and Marines have 27 active duty and 14 Reserve judges. That comes to 14 courts per year for each active duty judge. Again, that is certainly less depending how many were done by Reserve judges. 35 or 19% of the courts were before members. JAGs in the Navy/USMC appear to  have little opportunity to practice before members.

An officer was sentenced Sunday to dismissal from the Army but no time in prison after being found guilty of attempting to sexually assault a teenage family member while visiting Disneyland Paris three years ago. [The prosecution had called for up to a five-year prison sentence.]
Lt. Col. Andrew J. Dial had faced three charges related to sexual assault, all of which he pleaded not guilty to during a nearly weeklong court-martial.
A jury of eight high-ranking officers found Dial not guilty of indecent conduct and three counts of abusive sexual contact, while convicting him Saturday on the attempted sexual assault charge.

Pritchard described the verdicts as “inconsistent” after the jury announced them Saturday.
He questioned how there could be evidence to support a guilty verdict of attempted sexual assault if the accused also had been found not guilty of touching the family member’s breasts and genital area without consent.
Pritchard considered a motion of his own that would have rendered a not guilty verdict, but upon deliberation allowed sentencing to continue.

​No. 22-0280/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
 
WHETHER MILITARY OFFICIALS ACTED WITH DELIBERATE INDIFFERENCE IN SENDING APPELLANT TO LOWNDES COUNTY JAIL—A CIVILIAN CONFINEMENT CENTER WITH "A HISTORY OF INHUMANE LIVING CONDITIONS"—AND WHETHER APPELLANT SUFFERED CRUEL AND UNUSUAL PUNISHMENT THEREBY WHEN, INTER ALIA, CONFINEMENT OFFICIALS FAILED TO PROTECT HIM FROM PHYSICAL ATTACK, WITHHELD HIS MAIL, WITHHELD VISITORS, AND WOULD NOT LET HIM GO OUTSIDE WHILE HE LIVED IN UNSANITARY CONDITIONS.

The Office of the Secretary of Defense (OSD) and the military departments have developed health and safety standards for military correctional facilities (MCFs). However, GAO found that the Air Force does not routinely assess its MCFs for adherence to these standards. Specifically, it is the only service that has not ·

     required the routine assessment of adherence to a uniform set of MCFspecific health and safety standards,

     and · assessed all of its MCFs to determine adherence with these standards.

By routinely assessing all of its MCFs, the Air Force could better ensure that its MCFs are meeting health and safety standards, and identify and respond to any potential risks to the health and safety of MCF staff and incarcerated persons.
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Inspections from 2017 to 2019 at an Air Force base identified structural and procedural deficiencies at the Air Force MCF. In 2020, an investigation prompted by a December 2019 suicide at the MCF resulted in an almost year-long closure of the MCF to address deficiencies identified. The Air Force has plans to address the remaining facility deficiencies identified in the earlier inspections; that work is expected to begin in fiscal year 2023.

Dwight Sullivan

[Disclaimer:  The views presented are those of the author and do not necessarily represent the views of DoD or its components; they are made in the author’s personal capacity and should not be imputed to anyone else.]