Timing of certain motions

When the government responds to a written discovery request and their reply is “[N]o such evidence is known to exist[,]” or words to that effect--do not believe them or rely on that response.

Yes, this is hyperbolic, but I wish to make a point.

I am in general agreement with Chief Judge Ohlson and Senior Judge Effron, dissenting in United States v. Givens, issued by CAAF today--the judges are not hyperbolic--but they are dead on.

The trial defense counsel filed a motion for defective referral because of UCI just a few days before trial was to start; months after arraignment and some time after the MJ's motions due date. The MJ declined to hear the motion because it was filed late and because defense counsel had not sufficiently established "good cause" for a waiver of the filing deadlines. (The dissent is critical of the MJ for not making a good effort to get at the reasons for late discovery of the issue itself. Slip op. at 2.)

If I am reading the opinion correctly, it seems it was trial counsel who was alleged to have committed UCI. Slip of. at 2 and 4.

​Appellant argued that this motion embodied a combination of two, separate but related, errors. On one front, the motion alleged the preferral was defective because CPT JE coerced CPT CF into preferring charges that CPT CF did not believe were true, and of which CPT CF lacked personal knowledge. Secondarily, the motion alleged that CPT JE’s act of coercing CPT CF to prefer charges also constituted unlawful command influence. 

​Do not take comfort from United States v. Jameson, in that defense counsel may reasonably rely on representations of trial counsel when deciding not to raise a motion (or perhaps do anything else for that matter). The dissent observes,

​I also note that on July 13, 2018—more than four months before the entry of pleas—defense counsel specifically asked the Government to disclose any evidence of unlawful command influence, to which the Government responded: “[N]o such evidence is known to exist.” Appellant’s reliance on that representation was reasonable because all evidence of unlawful command influence concerned the behavior of government actors. And as we have held previously, “there [is] good cause [shown] when the government ‘sandbag[s]’ the defense.” United States v. Jameson, 65 M.J. 160, 163 (C.A.A.F. 2007) (third alteration in original) (quoting United States v. Coffin, 25 M.J. 32, 34 n.3 (C.M.A. 1987)). That is, when defense counsel reasonably rely on representations by the government in deciding to not file a motion, and the government later acts inconsistent with those representations, good cause can exist to “grant relief from the waiver.” R.C.M. 905(e); see Jameson, 65 M.J. at 163. Per Jameson, the Government may not have it both ways. Appellant’s failure to file a timely motion was directly traceable to representations made by the Government, and thus even if the motion should have been filed before pleas, the military judge erred in failing to address this critical evidence as to whether there was good cause to “grant relief from the waiver.” R.C.M. 905(e).

Slip op. at 7 (Ohlson, C.J. and Effron, S.J., dissenting). So, what's the issue?

Generally, any person subject to the UCMJ may prefer charges, however, the accuser must state that the charges “are true in fact to the best of his knowledge and belief.” United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994) (internal quotation marks omitted) (quoting Article 30(a)(2), UCMJ, 10 U.S.C. § 830(a)(2)). Under Rule for Courts-Martial (R.C.M.) 307(b), through the accuser’s signature, preferral signifies that a person has sworn an oath to assure that they have either personal knowledge of or investigated the matters set forth in the charges and specifications.

​“A person who has been ordered or coerced into preferring charges becomes an ‘accuser’ within the meaning of Article 1(9), UCMJ, 10 USC § 801(9).” Hamilton, 41 M.J. at 36. “An accuser is disqualified from acting as a convening authority in that case.” Id. (citing United States v. Jeter, 35 M.J. 442 (C.M.A. 1992)).

Slip op. at 4. Every now and again the command may slip up and just tell someone to "sign here," and they do so without satisfying the legal requirements for preferral.

The majority opinion concludes that the military judge did not err. However, for the reasons set forth below, I conclude that the military judge erred in two critical respects. First, the ruling of the military judge did not take into account the recognition in our case law of the importance of permitting an accused to raise an accusatory UCI claim at any point before the adjournment of an accused’s trial. Second, even assuming that the filing did not meet the timing requirements of Rule for Courts-Martial (R.C.M.) 905(b)(1), I conclude that the military judge erred by failing to conduct an adequate inquiry into the circumstances supporting the defense contention that there was good cause to “grant relief from the waiver.” R.C.M. 905(e).

​To some extent this case has strains of the case-that-shall-not-be-named, United States v. He Who Shall Not be Named. What did the defense know and when did they know it? The dissent observes,

​The military judge denied the motion on the basis that the facts relied on by the defense were “discoverable” since the date of preferral. If that standard were established as a required condition for establishing good cause, it would impose on defense counsel an obligation to engage in discovery throughout an accused’s command in order to ascertain whether there had been any impropriety at the accusatory stage of a court-martial, even if the defense had no basis for making such an inquiry.

There are several questions not addressed by CAAF or the MJ.

• Government, did you know this?
• Government, when did you know this?
• Government, what did you do about it?
• Government, when did you tell the defense?

These questions are relevant to the good cause standard as well as the "discovery" issue. If the Government says we didn't know about it until the motion was filed, then how was the defense to know it? Or, why didn't the Government know it? Or, cynically, did the Government know about it but play catch-us-if-you-can? 
​
The dissent also takes issue with the majority's conclusion about when the defense must make or lose an accusatory UCI motion.

The majority holds there was no abuse of discretion by the military judge. So, it may seem that motions to dismiss for accusatory UCI must be made before arraignment, or the date in the TMO, or you better have a really good reason you didn't find out sooner. Of course, UCI might be one of the harder issues to identify and root out, because, I suspect, the witnesses are not likely to be so open about the relevant facts and circumstances.

One other point not discussed is the 'so what' question. Let's assume the MJ had heard and agreed with the defense. Was the MJ required to dismiss with prejudice? Could the MJ have dismissed without prejudice allowing the gubmint to do it again but the right way?

If you have some pithy on point comments, send them our way at [email protected].

Make no mistake, I am not condoning the late filing of motions. I am a fan of pretrial motions, especially motions in-limine from either party. This is why I am fond of the Navy-Marine Corps practice of scheduling at least one motions session before trial.

• You have to work on your case to prepare for trial.
  • Litigating motions forces you to look at your case early and evaluate its strengths and weaknesses.
• You can help shape your case.
  • Your trial plan is based partly on what the admissible evidence will be or what you think it may be. Wouldn't it be nice to know early what evidence will be admitted or excluded. If nothing else, when something is excluded you can shape your direct or cross-examination to avoid opening doors.
• You may get some discovery.
  • The other side has to respond to your motion. In doing so they, usually, have to present evidence and make argument. If you listen you might discover some facts you didn't know or didn't think were important and you may get a sense of the other sides theory or trial plan.
• You can make the MJ happy.
  • Why not? A judge who is presented a motion early can examine the motion, study the facts, do research,  and develop pertinent questions for counsel. The ultimate result is a well thought out statement of facts (that are not clearly erroneous), use of the appropriate law, and a reasoned conclusion based on the facts and the law. I know the appellate counsel like that also. You may not like the result but is it not better to know the answer early so you can adjust your case.
  • Judge's make better decisions after full and fair consideration rather than on the fly in midst of trial. Waiting for something to come up in trial may limit an optimal response.
• True, there are tactical reasons for not raising a motion. But that's a different subject.
• You can help your client. But that's a different topic also.

Cheers, Phil Cave