The Next UCI Scandal

3/5/2024

More evidence that the Army's criminal law group at OTJAG is serving as a centralized "thought police" -- much like Soviet-era "political officers."

See pg. 29 of this PDF.

We are reminded of a FOIA request we once sent to OTJAG Criminal Law asking for any documents describing the purpose and functions of the office. The Army responded that no such records exist.

Government writ:

govt writ
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Defense response:

defense response
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Email sent by SJA to OTJAG Criminal Law:

24 Comments

Cloudesley Shovell

3/5/2024 12:22:59

Is there any training? Any training at all? Hey, trial counsel, SJAs, people up at OTJAG, OJAG, whatever--here are some cases where convictions were overturned because your predecessors were idiots. Learn from their mistakes!

Apparently not.

Also, don't go whining to the chief judge like a little coward about a continuance that you agreed to!! For goodness' sake, look the family in the eye and own up to your decisions. If you can't hack that responsibility, you don't belong in your current billet.

/Rant out.

Kind regards,
CS

Brenner Fissell

3/5/2024 12:33:17

It seems like much of the delay was because the death was initially ruled a suicide and was considered to be a suicide for 4 years. I don't understand why they think a few months of delay in a murder case are unreasonable.

Andy Gross link

3/6/2024 05:44:11

Holy unforced error, Batman!

The second and third order effects of this could be huge, including additional delay in the case.

SVC Please

3/6/2024 08:43:27

What terrible instincts and poor lawyering. Why choose to go this route instead of using the courts in the first place? File a writ petition for a writ of procedendo/mandamus. Leverage the SVC program. Detail the best SVC to the family members and have him assert the right to proceedings free from unreasonable delay. The fact that going to the Chief Judge was the default says a lot about Army justice - none of it good.

Brenner Fissell

3/6/2024 10:38:26

Writ of procedendo--excellent!!

Trial Counsel

3/6/2024 10:14:17

Interesting discovery issue. I'm not sure the Government can invoke attorney-work product doctrine to circumvent illegal activity -- assuming there is any -- especially given the breadth of RCM 701. So the Government will probably have to turn everything over. Apart from that...

Certainly not an email I would ever send, but I'm not sure how it amounts to UCI. The SJA emails the military judge's boss complaining about a lengthy continuance and states both the alleged victim and command are disappointed by the delay.

While Art 37(a)(1) prohibits a CA or another CO from "admonish[ing]" a military judge, the SJA is not the CA. Nor is an expression of "disappointment" in the delay of the proceedings an admonishment.

If this is all there is, I'm not sure the Defense gets any relief. As the Government points out in its brief, RCM 109(3) does allow parties to complain about judges, and the Discussion section lists the Chief Trial Judge as a proper recipient of a complaint.

Andy Gross link

3/7/2024 05:19:38

RCM 109 discusses complaints related to the matters having a bearing on the fitness of the judge. Complaining about a ruling ain’t it.

If you’re going to pull the pin on a 109 complaint, it really needs to be focused and you have to point out the conduct and why it violates some code of ethics, military bearing, or professionalism. A ruling on a continuance doesn’t come close.

Trial Counsel

3/7/2024 09:15:11

Even if true, a lot of dominos need to fall before we call this "UCI" - let alone UCI amounting to actual prejudice, which is the new standard.

You say "ruling" but really this was a complaint about undue delay, which is more of a process issue than a gripe about the "findings or sentence," which is really what Art 37 talks about. Surely there is some room for an SJA to complain about why things are taking so long.

Imagine a hypothetical in which a MJ just grants continuance after continuance no matter how frivolous. It seems a stretch to say that an SJA can't complain to the judge's boss about something like that.

And there's still the possibility that this is all coming from the SJA, not the CA. Sure, the SJA often acts for the CA. But it's entirely possible that the CA didn't care about this issue and says as much in an email attached to a later motion.

William Cassara

3/7/2024 10:05:50

It seems a stretch to say that an SJA can't complain to the judge's boss about something like that.

Not to me. The remedy is in court. File a motion for recon, file a writ, but the SJA has no business getting involved with the MJ's boss.

Trial Counsel

3/7/2024 12:17:02

Judges are not above being criticized to their superiors based on their rulings in court. The DOJ, for example, has a process in place for filing complaints against immigration judges: https://www.justice.gov/eoir/complaints-regarding-eoir-judges

Also, I'm unaware of anything in RCM 109 that prohibits an SJA from criticizing a judge's inability to efficiently handle a case. To the contrary, The Discussion section of RCM 109 specifically outlines "incompetence" as a basis for filing a complaint.

Trent Kubasiak

3/11/2024 10:07:07

You don't find this odd "Trial Counsel"? Let's just move the case to the federal district court, and keep the kind of decision the judge made the same. Would it be appropriate to e-mail the chief judge to complain about the district judge's delay decision?

I won't believe you if you say yes. Delays are normal and this one pretty reasonable, Bergdahl had several this same length, and we excused it for the profile of the case, but profile doesn't make the delays more or less reasonable. A delay isn't a fitness issue.

Nathan Freeburg

3/6/2024 13:42:10

TC:

Good points but I think the question is raised: when the SJA says “the command” is disappointed, isn’t that an expression on behalf of the CA?

Philip D. Cave link

3/6/2024 13:47:46

Even though an SJA is neither a commander nor a convening authority, we have held that actions by an SJA may constitute unlawful command influence, because "a staff judge advocate generally acts with the mantle of command authority." United States v. Kitts, 23 M.J. 105, 108 (CMA 1986). We do not believe, however, that every instance of advice or expression of opinion by an SJA is attributed to his or her commander. We also do not believe that SJAs must be timid in expressing their views. SJAs frequently are asked for legal advice by subordinate commanders, and they are obliged to provide competent and candid advice. It is incumbent upon SJAs, however, to make it clear when they are expressing the view of their commanders and when they are expressing their own legal opinions.

United States v. Hamilton, 41 M.J. 32, 37 (C.M.A. 1994).

Tami a/k/a Princess Leia

3/7/2024 12:55:31

There was simply no basis for the SJA's email to the Chief Judge. The continuance was unopposed, so no basis for a complaint. Just a blatant attempt to replace the MJ, IMO. Gives another black eye to military justice.

TC2

3/7/2024 15:12:41

Depends on what necessitated the delay. If it's because the judge hasn't issued rulings that impact both parties, then I think it would be appropriate for an SJA to complain about delay while also not objecting to the continuance.

Philip D. Cave link

3/7/2024 16:23:25

I think the underlying issue here is when a complaint ought to be made.

If the complaint were made AFTER trial about the MJ's work throughput and timeliness in getting out decisions on motions decisions, then we'd be inclined to say no problem.

As mentioned above, in VA, we get an annual survey from the Bar asking about judicial performance. It seems reasonable to get input from practitioners to improve the performance of the judicary.

I think we've all had judges who have given a heads-up that they intend to deny a particular motion, and the written ruling will follow. From that, the parties can prepare their case. If I understand what happened here, the prosecution was equally uncertain of how to try their case as the defense because the pending motions seemed consequential. In light of Anderson, an MJ could easily issue an oral denial of a unanimous verdict motion at arraignment or whatever.

You'll note in the Defense brief on page 6 a reference to a comment from the CMJ about "other" issues in the timely issuance of rulings.Aid, assistance, and counseling seem well within what we'd expect of a CMJ. The question is timing and context--and certainly during an ongoing trial.

Perhaps the best characterization, as a friend once said, is C'est pire qu'un crime, c'est une faute, Choose your poisson in English as (1) It was worse than a crime; it was a blunder, or (2) It’s worse than a crime, it’s a mistake.

William Cassara

3/7/2024 16:31:36

Brother Phil is correct. This MJ has a (well deserved) reputation for not issuing rulings until right before trial, which hampers both sides. The issue, IMO, is not whether she is above criticism. The issue is when you criticize. An email to the Chief Judge (disclaimer: I know her well, and she is beyond reproach IMO) after trial, with a copy to TDS that says "we are frustrated by the slowness of the MJ's response to motions" is one thing. An email in trial, from the SJA to the CMJ, complaining about a motion you consented to, is another altogether. It is a purely self-inflicted wound.

Philip D. Cave link

3/7/2024 16:50:03

Echo Brother Bill's comment re the CMJ. A trial judge to be emulated. It's a pity she probably loves her job as a judge; she'd be a great OSTC.

TC3

3/7/2024 19:25:03

The problem with timing is that trial judges are usually repeat players at an installation. Even if you wait until after this trial is complete, that military judge is probably sitting on 10 other cases. Wouldn’t a complaint taint those other cases as well?

Philip D. Cave link

3/7/2024 21:53:12

TC3, you make a valid point. First, a look at the somewhat confusing Army Trial Docket suggests this MJ may not have 10 cases, but that doesn't mean your point is invalid. Second, it is not unreasonable for a CMJ, who is a supervising attorney/judge, to have input from the field and from practitioners. As supervisors of trial and appellate practitioners, that was part of our job. Third, to your point, that is what is contemplated by RCM 109, and that's what the dissenters in Mabe argued in response to the Mabe letter. The real question, then, is what to do with that input. Personally, I would triage it. Set aside the obvious BS (not ignore it), focus on the serious stuff, and judge the immediacy of any action necessary, and then act. IPE, Identify, Plan, and Execute. I always kept those issues as private as possible--you know, the mantra praise in public, etc., etc., etc., which is what 109 contemplates or should. The question with a sitting MJ or active counsel is when to execute your plan. That's a question of judgment and method. If it's a single issue, that might wait. But if a complaint is forming part of a pattern, then that calls for some immediacy. The second or third similar issue should get one's attention. Again, it comes back to timing. We should not be addressing problems while counsel is in court (there are exceptions) because that distracts them from litigating the case in front of them for no real purpose. But after court is done any "issues" can be wrapped into a general debrief after the case is finished, that's utilizing the white space. That's all part of mentoring by addressing concerns while maintaining the person's morale, etc., etc., etc. I'll give you an example.

As an SDC with 22 counsel, one was ineffective. Several more months of mentoring weren't helpful, so the decision was made to move the person to the Admin Law Dept. The person was not exactly happy because they had wanted to be a trial litigator. Yet, the person FLOURISHED and was happy.

To your last sentence, no so long as it doesn't become a cause celebre.

On a final point, as an SJA/CJA I never called a judge about a case during or after, and I would make sure the CO/Commander never did either. The idea never entered my head, and I'm not aware of any of my colleagues who would put themselves in that situation either.

I'm trying to refrain from commenting on the specific case too much, because as one of your colleagues just pointed out, and as you can imagine the gossip-circuit, is wondering what they are hiding. One of the questions I have been pondering is what are the next effects.

Non-disclosure=more litigation and delay?
Non-disclosure = an adverse inference on the alleged UI? This is a potential remedy on discovery issues. Didn't a court just say that refusal to hand over 513 information can't be coerced but can lead to alternate remedies=a consequence?
Non-disclosure=abatement? See above.
Should the CA and SJA be removed from any further involvement in the case and replaced with a new CA and SJA, especially for any member's selection process?
Get a judge from another Service, see, e.g., Vargas=delay.
While there are claims of the MJ being a witness, is not the STC also a potential witness who should be disqualified--the STC may have information?

Inquiring Mind

3/8/2024 10:40:58

An RCM 109 complaint about a judge making slow rulings or granting an unopposed continuance in a murder case (which the government probably took years to prefer anyways) seems preposterous. If there are issues with an MJ at an installation or around a circuit, that seems like a discussion between OTJAG-CL and the judiciary, rather than a GCMCA's legal advisor and the judiciary.

I can't tell if it's worse judgment for the SJA to make an RCM 109 complaint solely due to the MJ's rulings (I doubt the SJA thought this email was an RCM 109 complaint), or for the SJA to fume about a pending case ex parte to the judge' supervisor.

It's a disappointing glimpse into some decision-making by senior leaders who should be expected to know better.

Brenner Fissell

3/8/2024 15:57:08

An interesting comment raised at a meeting we were in today: could reference to "incompetence" in 109 actually mean mental competence, as in competent to stand trial, etc., and not "competence" in the sense of ABA Rule 1.1. And I agree with IM above that even in the rule 1.1 sense there is no issue here.

Tami a/k/a Princess Leia

3/9/2024 12:40:10

Complaints about military judges are governed not just by R.C.M. 109, but also AR 27-10. A valid complaint about a military judge would include being convicted of misconduct (official or personal), or "unfitness" that reflects a lack of integrity or judicial demeanor. And while there's a "other reasons" clause, "slow rulings" don't seem to fit.

Additionally, the discussion under R.C.M. 109(c)(2) states "Erroneous decisions of a judge are not subject to investigation under this rule. Challenges to these decisions are more appropriately left to the appellate process." It seems like the issue here was an "erroneous ruling" granting a continuance (can't really say it was erroneous since the Government didn't oppose it), which doesn't justify an R.C.M. 109 complaint, but instead, should be appealed to ACCA.

So now, we have a "self-inflicted" Government wound to this high-profile case regarding the continuance ruling, but also another "self-inflicted" wound caused by the Government for refusing to turn over evidence to the MJ for another ruling using a disingenuous "privilege" argument, and making a disingenuous argument that the complaint was really under R.C.M. 109.

The Government's conduct to this point suggests to me there is evidence of UCI in a Salyer-like case. Really, if the emails are benign, then show them to the MJ. Don't withhold them and cause additional delay, like what is happening now (the parties will need to "reset" after an ACCA decision or appeal further to CAAF).

Finally, we also have a Barry situation with COL Smith telling the MJ that "Congress is watching and we don't want them to get word of this because they'll make more changes targeting military judges." To me, that falls in the "good intentions but bad optics" category.

Philip D. Cave link

3/9/2024 19:40:29

I'm about to close the comments for this thread. After all, do we not have an ACCA decision to ponder, that can be a new thread. Let's relax, replenish, and reevaluate.

What might ACCA do, and what would be the knock-on (sorry, used a rugby (Union) term there [https://tinyurl.com/veebfxkt]) effects of that move?

And do please come back and engage. I, for one, have relearned a lesson that it's not what you say but what the other person hears or thinks you said.
[https://www.linkedin.com/pulse/its-what-you-say-hear-christabel-singh/]

Do NOT take this link as being in any way an endorsement of ANY product shown at the site--it was just the first easy-to-read post that Gemini came up with.

Cheers all.

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The Next UCI Scandal

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