New NMCCA published opinion — what am I missing?
NMCCA issued a published opinion today. United States v. Kivel, __ M.J. ___, No. NMCCA 200800638 (N-M. Ct. Crim. App. Jan. 7, 2010). The opinion doesn’t appear to be up on NMCCA’s web site yet. I’m having serious connectivity problems tonight, so no guarantees, but I’m trying to post the opinion here.
It isn’t immediately apparent to me why the decision is published. It rejects a factual and legal sufficiency challenge, it holds that the military judge didn’t abuse his discretion in denying a defense witness request on case-specific grounds, and it holds that certain admissions by the appellant were relevant. What am I missing? What’s the significant portion of the opinion that led to its publication?
Even more strange is the fact that it replaces an earlier unpublished opinion of 22 December 2009…
Maybe it’s that NMCCA is indicating that factual sufficiency review is not de novo?? They indicate that:
“In cases such as this, where witness credibility plays such a central role, we are particularly loath to second-guess the findings of court members who had the advantage of being able to personally see and hear the witnesses.”
If 66 review is truly de novo, they shouldn’t be “loath” to do anything.
One of those judges has put in for retirement so it is probably for resume purposes.
Doesn’t Article 66 specifically tell them to second-guess?
Sure, taking into account that they didn’t see the witnesses yadda yadda, but they are specifically supposed to second-guess.
That’s their whole freaking role under factual/legal sufficiency and Art 66.
Let’s look at the text (always a good idea). The last sentence of Art 66(c), UCMJ, says: “In considering the record, [the CCA] may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” The structure of the sentence makes the “recognizing” clause subordinate to what comes before. It’s inevitably going to be a matter of degree, but you could argue that “being loath” to second-guess goes beyond recognizing the value of demeanor evidence. And indeed, to what kind of evidence does the “recognizing” clause apply? For example, what if a case turned on scientific evidence or the evaluation of documentary or real evidence as to which demeanor evidence played no role? By the way, note that the primary clause of the sentence is permissive (“may”), not mandatory, so a CCA could presumably elect not to exercise the power conferred by this sentence. On the other hand, the “recognizing” clause is not permissive–it applies (governs?) whenever a CCA exercises the power conferred by the primary clause. Thus, in any case in which a CCA does exercise what let’s call its de novo power, it must do so subject to the “recognizing” clause.
Recognizing is a pretty sparse word in this context. Congress could have used a word like consider, or say making allowances for, but they chose about as weak of a word as they could, recognizing.
I can “recognize” something and completely dismiss it. The Service Courts seem to look at recognize and see make allowances for or give deference to.
Yes, what I call the credibility deference in the having been there standard is applied. Usually in favor of the government. For me, the significant error in this thinking is the apparently underlying assumption that the witness must have seemed and acted credible to the fact-finder. The witness testified, we have read what the witness said, the appellant was convicted, while we are not convinced of guilt, the witness must have been convincing, so we too will find guilt. Read in a cold record, allowing for demeanor is in fact meaningless and nonsensical. That’s a reason why I try to put references to witness demeanor in argument, to try and convince the members of course, but to try and make a record for the appellate court not to give too much credibility deference.
“Let the record reflect that the witness does not appear fazed by my cross-examination.”
Anon 1309 — Upcheck #7 is mine.
By the way, how many trial defense counsel read the ROT and comment or object to the court-reporters commentary on the trial and the witness testimony in the ROT. “The witness was crying.” “The witness was bawling her eyes out.” Who authorized the court-reporter to annotate the record like that? Should we encourage court-reporters to report their observation of how the witness performed?
Phil, I sympathize. I had a case once where, for various reasons, we had to rely on transcribed Article 32 testimony during the trial. The members wanted look at the transcript itself, where the court reporter’s commentary was on full display:
“The witness began to cry.”
“The witness began sobbing uncontrollably.”
“The witness let out a primal scream of existential despair at the inequity being perpetrated by an inhumane and uncaring system of so-called justice.”
Well, I may have embellished that last, but you get the drift. It was an huge pain going through the transcript and editing that crap out.
Unfortunately, in the Air Force at least, court reporters tend to have accumulated enormous tenure and no one wants to cross them. If the reporter is good, that’s okay; if not, it can be a serious annoyance.
Having worked at the appellate court, there are always factors that we, as readers of this phenomenal blog, may never know that went into why this opinion was published. More importantly to me, having toiled in the appellate defense arena, it’s always nice to see the court explain its decision in a published opinion, especially when it deals with oft-raised topics like legal and factual sufficiency in a sexual misconduct case. Too often, errors in this arena are written off in a summary affirmance, leaving appellate counsel with little constructive feedback as to the court’s thinking in rejecting their arguments. Thus, while this opinion may not have established any groundbreaking legal principles or analysis, it is refreshing once in a while to see a published opinion where the chief judge explains how the court views and analyzes a legal and factual sufficiency claim, and other oft-raised errors like erroneously admitted statements and testimony that should have been admitted.
[...] Kivel opinion is no longer published. We discussed the opinion here last week. Today the court issued an order (posted here) explaining that Kivel was originally an [...]
Los Angeles Court Reporters…
Was Required to get a deposition recorded so gave RHS Court Reporters a phone call and set up a day – worked excellent.. thanks for a great service….