CAAF’s daily journal for Wednesday, 4 April denied without prejudice the writ appeal in United States v. Morton, __ M.J. ___, Misc. No. 07-8009/CG (C.A.A.F. April 4, 2007). An earlier CAAFlog entry provided the bizarre factual background for this writ. As CAAF explained in its order this week, the defense sought “an order to permit the defense to prepare a ‘privileged verbatim transcript'” of the Article 32 investigation or, in the alternative, “an order prohibiting the [government] from preventing the [defense] from preparing such a transcript of the proceeding.”
As “Brad” previously explained, “The Coast Guard refuses to record or otherwise preserve Article 32 testimony. In this case the defense decided to bring a civilian court reporter to the Article 32 so that they could have a verbatim transcript of the proceeding. The convening authority forbade the defense from using the court reporter.” That sounds like a pretty horrendous order to me. Judge Erdmann thinks so too. In his separate opinion concurring in part and dissenting in part, Judge Erdmann writes:
I would grant partial relief by ordering that Appellee take no steps to preclude an employee of the defense from attending the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (2000), hearing, as a member of the public and from transcribing the proceedings, subject to the investigating officer’s power to exercise reasonable control over members of the public attending the proceedings. I would not address the issue of attorney work-product privilege at this time as that is a matter appropriately left to a military judge in the event of a trial by court-martial.
Yesterday I noted my belief that rules governing criminal proceedings should generally be designed to promote a trial’s truth-seeking function. Refusing to allow a record to be made of a witness’s statements at an Article 32 investigation would seem to thwart the truth-seeking function rather than promote it. What is a legitimate reason for the Coast Guard’s and convening authority’s approach?
I hope that despite having dodged the extraordinary writ bullet in Morton, the Coast Guard legal community realizes that the cost of this bizarre policy may be, at the very least, the reopening of the Article 32 once a military judge gets to rule on this issue if the charges are referred to a court-martial. And I hope that after realizing that, the Coast Guard does the right thing and voluntarily provides the relief that CAAF declined to order.