U.S. Court Appeals for the Armed Forces

7/13/2023

M.W. v.United States affirms the conclusion in EV v. United States that CAAF lacks jurisdiction to hear a petition from an alleged victim who lost at the CCA. Here is the CCA opinion. M.W. at AFCCA consolidates several petitions where the issue was the TC and SVC coordinating over challenges to members. This case lead to an earlier discussion about whether a TC and SVC's interactions can become so intertwined that the SVC becomes a de facto trial counsel subject to all the rules of discovery (and the issue of TC having to disclose the contents of those discussions because if there is no de facto TC, then there is no attorney-client privilege between the TC and SVC.

In EV v. United States, 75 M.J. 331, 332 (C.A.A.F. 2016), this Court held that it did not have jurisdiction to review a decision of a Court of Criminal Appeals (CCA) at the request of a “victim of an offense” as that term is used in Article 6b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b (2018). Although Congress has since amended Article 6b, UCMJ, and other provisions of the UCMJ, we are compelled to hold again today that this Court lacks jurisdiction to review a petition filed by a victim of an offense. Our decision rests solely on the statutory language of the UCMJ. It does not reflect any policy decision about whether this Court should have statutory jurisdiction, which is a matter solely for Congress. We further see no reason that Congress could not amend the UCMJ to grant this Court jurisdiction to review a petition filed by the victim of an offense. However, as currently written, neither the language of Article 6b, UCMJ, nor any other statute, grants this Court the necessary jurisdictional authority to review a petition filed by a victim of an offense. We therefore dismiss the petition in this case.

Trial Counsel

7/14/2023 19:40:11

The lower court opinion is more interesting. See: https://afcca.law.af.mil/content/afcca_opinions/cp/in_re_united_states_in_re_mw_-_misc__dkt__nos___2022-09_-10_-15_u_1099495.pdf

It's now adjudicative UCI for a VLC to confer with a TC about challenges for cause? What specific law makes such a conversation "unauthorized," as is required under Article 37, UCMJ? Isn't adjudicative UCI limited to cases where someone tries to prevent a witness from testifying?

Congress did a good first step of gutting the nebulous "apparent UCI" by requiring a showing of material prejudice. As this case shows, further clarity is in order.

Philip Cave link

7/14/2023 21:41:51

I read the AFCCA decision differently. AFCCA has not said unlawful influence infected this case. They have said that the MJ erred in how she resolved the issues through an ex parte hearing and that the MJ needs to conduct a hearing where the TC can interact. So the case will go back to the MJ for a hearing on whether there was UI or not?

Nathan Freeburg

7/15/2023 14:28:38

The MJ is now an SJA but I read the decision the same as you.

Trial Counsel

7/15/2023 15:58:57

I'm referring to what the MJ said, not the AFCCA. What a debacle.

First, she sua sponte raised the issue as UCI (questionable since she's supposed to be impartial). Second, she stops the trial and wastes time questioning the attorneys under oath about what happened...even though DC was present when the conversations occurred. Finally, she finds no prejudice occurred since the DC was aware of everything...yet still removes TC's peremptory challenge.

Am I missing something? How is this anything - let alone UCI? This is a MJ inserting herself into the trial and wasting everyone's time...including the accused's right to a quick trial.

People reading this have to be laughing at our system.

Philip Cave link

7/16/2023 17:03:26

HQ is getting us more toward the practice questions. Assume that the right to consult means the SVC can do just about anything to assist the prosecution under the consultation rubric and still assert the shield of privilege. That gets us to my two common questions (1) what is the value added by doing something, and (2) how might that addition be devalued? We all make those decisions many times in litigation. For example, decisions on challenges can be challenging when you have a client who doesn't or does like a particular member and counsel feel the opposite, or you have two or three counsel in the room with differing or nuanced views.

I'll give you an anecdote of a client prosecuted for sexual assault. The senior member was a female O-5 nurse who was a leading light in the VWAP/FAP programs. We did not challenge her. The third senior member was a female O-4 line officer serving as the XO of the TPU (where various miscreants are residents pending court-martial, administrative separation processing, serving NJP punishment, or recently returned from a UA visiting family and conveniently missing ship's movement), we did not challenge her. I would hesitate today to leave them on the panel. Embedded is my personal liking for having female members in sex offense cases.

Seeing as NF has brought up the DAC-IPAD:

NF refers to the transcript (Link added to the post.) Go to page 90. COL Brewer hits the nail on the head with some concerns which are relevant to our discussion. The Army's views are different than the other Services, especially those of the Air Force.

NF mentions delays because of SVCs. In re VM [https://www.nimj.org/caaflog/air-force-court-of-criminal-appeals7032339] is about an alleged victims objection to a defense continuance. The transcript has senior SVCs talking about too many cases and not enough SVCs. More often than in VM, the situation is reversed where a trial is delayed because of the SVCs availability. I didn't notice the DAC-IPAD asking about that effect on trial delays--or I could have missed it.

So I'll ask a question. Imagine an accused in PTC, imagine that the Defense, Trial Counsel, and MJ fix a date that is reasonable and avoids a meritorious Article 10 problem. The SVC says they are not available until two or three months after the otherwise agreed date. Now what--who wins the docketing debate? The accused can't (normally) petition for a writ (I have some thoughts on that), but the SVC can if the MJ says well, we are going on the originally agreed trial date.

Philip Cave link

7/16/2023 02:36:32

TC, thanks for your clarification. I agree with you that the MJ was off the mark. I see nothing in the facts stated in the decision that raises the specter of UI, not even to the low standard for shifting the burden. Let’s keep in mind that something may be unauthorized, a bad idea, or give a poor impression of a trial’s fairness, but that is not something automatically unlawful under Article 37.

In this and other cases, the real issue is defining what 6b(a)(5) means. The language used is nebulous.

Personally, I think the language is limited to pretrial discussions about alternate disposition, forum, referral, PTAs, and whether the alleged victim will cooperate—nothing more. See also (e)(4). I agree that such a position has to be squared with (a)(8)—so why did Congress include (a)(5)? One answer might be that (a)(8) is a notice provision, not a consultation provision; after notice, the SVC puts (a)(5) into effect.

Suppose you have a situation at trial where the MJ interrupts the TC examining a witness to ask, “Who is that passing notes” to you?” The note passer identifies as the SVC. The MJ says no more notes, please. I think we know that almost all MJs prohibit note passing to or from the gallery. This is a matter of court decorum, etiquette, etc. There might be someone out there who would argue that note-passing is, therefore, unlawful, but that would be frivolous. The notes passing is not a (a)(5) act because that is assisting trial counsel in presenting the prosecution case. And is that assisting the prosecution some evidence of a de facto TC? We’ve had the discussion about de facto TCs; I won’t belabor it.

Let’s imagine that the SVC gets so involved with the trial counsel’s planning, strategy, preparation, or note passing that the TC realizes they have something that ought to be produced as discovery. What is the TC’s obligation?

Helpful Questions

7/16/2023 07:57:08

Mr. Cave - I think you bring up legitimate questions, unfortunately CAAF will not be weighing in (more on that below). Passing notes is risky and every VLC should know that if they go that route, they should expect it gets shown to defense and an MJ could easily forbid that. VLCs should assume every email sent to prosecution could be disclosed. VLCs should assume everything they say to prosecution may be disclosed. But, the possible need to disclose contents of the “conference” with counsel for Government does not mean there is not a right to that conference. This military judge seemingly went out of her way to limit, deter, and shut down what appears to be a legitimate exercising of a victims right. The MJ went so far as to requiring the SVC to testify. This SVC and prosecutor conferred in the gallery on recess and the TC instantaneously disclosed the contents of the discussion upon request by defense. The SVC it seems then again talked to the TC just to remind that TC that the client had a 6b right to confer. It was that reminder of client’s rights that led to that gag order on the SVC and the ex parte hearing where the SVC had to testify. Not even addressing that military judge’s treatment of the victim, but it is striking the treatment of the uniformed judge advocate SVC that is just performing duty as assigned by TJAG and required under statute.
As for lack of jurisdiction - who knew one would need to look to the victim’s rights statute 6b to see that Congress intended for caaf to prioritize an accused’s article 67 writ appeal?

Nathan Freeburg

7/15/2023 16:33:40

Pretty sure civilian prosecutors would find it absurd to be taking advice from an attorney for a complaining witness.

Complaining Witness

7/15/2023 22:10:52

Perhaps, but Congress has not made a law for civilians there crime victims have a statutory right to representation at trials. Conferring with government is a right of crime victims. Attorneys have to diligently represent their victim clients, so if an SVC sees the rails coming off at voir dire what is she to do? Looking at the toke of SVCs from a civilian lens is just apples to oranges. SVCs aren’t going anywhere anytime soon - well, unless military justice goes somewhere.

Nathan Freeburg

7/16/2023 10:24:37

It’s a bit of a mess. One one hand it’s the state or service against the accused but I’m also sympathetic to crime victims and the reality of how the trial process and its many delays and tedium goes for them. But Congress has a habit of running into the law of unintended consequences. If you pass a statute saying that criminal victims have the right to trials without unreasonable delay and then you also give them attorneys and limited standing to litigate…well, those propositions can’t be reconciled. Every time you add an attorney to a trial that is one more schedule to de-conflict and one more potential avenue for a continuance. Likewise for every potential party to a proceeding. The more “rights” to uphold, the more delays to litigate.

With all that said, SVC/VLCs should think about when they might be exposing themselves to discovery and Brady obligations when they become involved with the prosecution. If you read the transcript from the last DAC-IPAD meeting you’ll see some differences between the services on this risk.

7/20/2023 15:23:01

United States v. Stefan, 69 MJ 256. ACCA judge brings up sua sponte a matter of dual hat risking becoming two face. Then the CAAF found no harm. Now we have two counsel possibly hiding behind one mask. But oh the horrors of a judge bringing it up. Exactly how was apparent uci gutting the UCMJ?

When I see a opinion using the word 'even' I have to check it s presence for part of speech and purpose. When Judge Stucky says in Stefan "...Appellant did not even raise this issue..." I know it is an expression, but it looks more like a conjunction than an adjective or adverb. So this is two ideas being joined together under the banner of balance. Or in this case, the ideas are tagged as a lack of balance. So, does this tell us that a judge bringing up a matter sua sponte is a bias?

Two points make a line. Three points make a plane. The judge here has a harder time making a balance. No, I won't lose my ahit over this.

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