If you had the power to change just one thing about the U.S. military justice system, what would you pick? I suspect that some of you would transfer the power to appoint members to someone other than the CA. While that is certainly a reform that should be implemented, that wouldn’t be my highest priority. I think that the biggest problem with the U.S. military justice system today is the institutional disparity in resources between the prosecution and the defense. The trial counsel can issue subpoenas; the defense counsel can’t. The trial counsel can get litigation funding from the CA without having to run the request by the defense counsel; if the defense wants funding, it must show its cards to the prosecution. The trial counsel is closely alligned with NCIS while the defense has no organic investigation capacity.
What we really need is a rule that says something like the trial counsel and the defense counsel shall have an equal opportunity to obtain witnesses and other evidence. What? Article 46 already says that? Well then how on earth could the system described above have developed? Do the two sides have equal opportunity to obtain evidence when one side has subpoena power and the other doesn’t? Hardly. Do the two sides have equal opportunity to obtain witnesses when one side must lay its case out for the other to justify funding for a witness, but the other side gets to seek witness funding privately? Doesn’t sound like it. Our current system is like a poker game in which three of the defense cards are dealt face up while all of the prosecution cards are dealt face down. It is anything but equal.
Lee is a Erdmann-authored unanimous decision of the three CAAF judges who started this term. Distressingly, like so many military justice cases these days, it’s a kiddie porn case. One of the government witnesses in the case was “a forensic expert from the Defense Computer Forensics Laboratory who had prepared a ‘Media Analysis Report’ based upon his examination of graphic images seized from Lee’s laptop computer.” Slip op. at 4. The government planned to have the expert opine that images on Lee’s computer were real photographs.
The defense wanted the services of an expert consultant, who might also become an expert witness at trial, to challenge the government expert’s relatively untested methodology. The government denied the defense’s request to hire the expert consultant and the defense unsuccessfully renewed the request at trial. The military judge denied the defense motion primarily on the basis — and I swear I’m not making this up — that the defense was able to interview the government expert, who didn’t identify any defects in his own methodology. Slip op. at 8. All right then — I guess that issue is resolved.
Well, not so fast. Judge Erdmann tore up the military judge over this reasoning:
In concluding that the defense met its burden of establishing necessity, we are concerned with the manner in which the military judge responded to this request. The military judge’s questioning of defense counsel reflects that the military judge found that since the defense counsel had the opportunity to discuss the images with the Government’s expert, there was no need for a separate defense expert. Aside from the common-sense conclusion that [the government expert] would be unlikely to cast a critical eye upon his own expertise, his analytical methods, or his professional conclusions, making a selected Government expert available for interview prior to trial does not properly respond to a defense showing of necessity for expert assistance.
Slip op. at 11.
CAAF held that the military judge erred by denying the request and that the error prejudiced the defense, requiring that the findings and sentence be set aside.
Before the obligatory decretal paragraph, Judge Erdmann concluded his opinion with the following:
Courts-martial must not only be just, they must be perceived as just. The requirement of Article 46, UCMJ, for United States v. Lee, No. 03-0071/AF equal access to witnesses and evidence secures that just result and enhances the perception of fairness in military justice. Where the Government has found it necessary to grant itself an expert and present expert forensic analysis often involving novel or complex scientific disciplines, fundamental fairness compels the military judge to be vigilant to ensure that an accused is not disadvantaged by a lack of resources and denied necessary expert assistance in the preparation or presentation of his defense.
Slip op. at 13-14.
Lee and Warner are a good start, but they seem to be just the tip of the Article 46 iceberg. How many more ocean liners must steam into that iceberg before we end up with a military justice system that truly respects the requirement that the defense and prosecution have an equal opportunity to obtain witnesses and evidence? In order to save future cases, the Joint Services Committee should immediately begin to implement a system that would give both the prosecution and the defense subpoena power (as exists in civilian courts) and that would provide the defense with the right to an ex parte hearing to litigate funding requests for expert and lay witnesses and expert consultants. Providing these rights through regulatory changes would eliminate the prospect of losing convictions on appeal as the courts recognize that, properly construed, Article 46 already requires such measures.