I have this strange feeling of déjà vu.
You may recall that in November, the Coast Guard Court issued a published opinion in a case called Garcia expressing “considerable doubt” over the convening authority’s refusal to the allow the defense to record the audio of Article 32 testimony unless: (a) the defense agreed to “produce a professional, verbatim transcript of the entire hearing from the records at Defense expense”; (b) the defense agreed to “provide a copy of this transcript to the Investigating Officer at Defense expense”; and (c) the defense agreed “that the time required to produce the transcript from the tapes will be considered excludable delay in accordance with R.C.M. 707(c).” United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), petition denied, __ M.J. __, No. 10-0199/CG (C.A.A.F. Apr. 9, 2010). But despite these doubts, the Coast Guard Court upheld the findings and sentence. Chief Judge McClelland wrote for a unanimous panel.
Yesterday, the Coast Guard Court issued a published opinion in a case called Garcia expressing doubt over the refusal to allow the defense to record the audio of Article 32 testimony unless: (a) the defense counsel agreed “to produce a professional, verbatim transcript of the entire hearing from recordings made by a certified civilian court reporter or trained and qualified U.S. Navy court reporter” at the defense’s expense; (b) the defense agreed “to submit the name and proof of qualifications of the court reporter to the Article 32 Convening Authority at least five days before the Article 32 investigation”: (c) the defense agreed “to provide a copy of the verbatim transcript to the Article 32 Investigating Officer, at Defense expense, within three weeks of the conclusion of the Article 32 investigation”; and (d) the defense agreed “that the time required to produce and deliver the verbatim transcript will be considered excludable delay in accordance with R.C.M. 707(c). United States v. Garcia, __ M.J. ___, No. 1317 (C.G. Ct. Crim. App. June 3, 2010). But despite these doubts, the Coast Guard Court upheld the findings and sentence. Chief Judge McClelland wrote for a unanimous panel.
In November’s Garcia opinion, the Coast Guard Court held that the anti-recording policy wasn’t unconstitutional, that the military judge didn’t abuse his discretion by denying a defense motion for a new Article 32 due to the anti-recording policy, and that the issue was waived by the accused’s guilty pleas. But the court added in a footnote, “We find the Government’s arguments attempting to justify the denial unconvincing. We have considerable doubt that it can be justified, provided the recording process is not disruptive.” Garcia, 68 M.J. at 564 n.2.
Yesterday’s Garcia opinion revisited the anti-recording policy issue and said a bit more, but still didn’t reach a definitive conclusion. The Coast Guard Court reiterated the November Garcia opinion’s holding that the anti-recording policy didn’t violate the Constitution. The Coast Guard Court noted that the military judge discussed the reasonableness of the conditions imposed on the defense in order to record the Article 32 testimony. The court opined, “It is here, if anywhere, that an abuse of discretion, by the government or by the military judge, might be found.” Id., slip op. at 9. The court mused:
The government required that a qualified court reporter be employed, and that proof of qualification be provided. If a transcript was contemplated, this was surely a reasonable condition.
This begs the question: was it reasonable to require that a transcript be produced? The military judge commented that “requiring a transcript be produced rather than waiting for the defense counsel to determine that one is required serves the interest of efficiency. The need for the transcript may not become apparent until trial testimony reveals an inconsistency. Halting the court-martial to produce a transcript at that point would be extremely inefficient and disruptive.” (Appellate Ex. XVIII at 5, fn 4.) The government makes the same argument before us. We find the rationale flawed. The existence of a recording does not, of itself, require a transcript or justify delay while a transcript is produced.[fn 4]
[fn 4] When the government denied the defense’s initial request to be allowed to tape-record the proceedings, its rationale for the denial was that “a non-professional recording poses the threat of an incomplete and/or inaudible tape of the proceedings. A ‘private’ tape recording is not reliable and is likely to create more issues than it resolves. … Equally important, there should be only one official record of the investigation – the investigating officer’s report. An ‘unofficial’ recording should not be made by someone who will not be able to dedicate themselves to making a verbatim record.” (Appellate Ex. XV encl. 4.) This rationale is equally flawed. The existence of a recording does not mandate that it be given any recognition by a court or a convening authority.
The use of a witness’s Article 32 testimony to impeach the witness at trial would typically involve asking the witness, during cross-examination, about testimony given by the witness at the Article 32 investigation that was inconsistent with the witness’s direct testimony at trial. Counsel would also be able to introduce the prior inconsistent testimony under Military Rule of Evidence (M.R.E.) 801(d)(1), Manual for Courts-Martial, United States (2008 ed.). This could be done by testimony of a person who attended the Article 32 investigation. As we noted in Garcia, “The lack of a [transcript] for either the cross-examination or for the introduction of the prior testimony may be less than ideal, but Appellant does not have a right to the ideal.” Id. at 563 (citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
Accordingly, to the extent that the military judge’s denial of the motion depended on an assumption that a transcript must be produced if defense counsel saw a need for it, we are inclined to view the denial as an abuse of discretion.
Id., slip op. at 10.
But once again the court declined to rule definitively on the issue, concluding that any error in failing to reopen the Article 32 was harmless: “if the military judge had granted the motion to re-open the Article 32 investigation, we are certain that Appellant would not have gained anything more useful than what he already had. Thus, if the military judge abused his discretion in his denial of the motion, that error was harmless beyond a reasonable doubt.” Id., slip op. at 11.
The court also rejected a challenge to the new Article 120, relying on CAAF’s decision in United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010). And the court held that a local police investigation of Fireman Garcia’s offenses hadn’t merged with CGIS’s investigation so the local police weren’t required to comply with Article 31.