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.

24 Responses to “New Coast Guard Court published opinion: to quote Yogi Berra, it’s like déjà vu all over again”

  1. Cheap Seats says:

    I see a much easier way to deal with the recorded 32 problem…Revisit the Navy/Coast Guard MOU for providing counsel. Why don’t we just change the MOU to state that counsel will not be detailed unless a recording can be made without these restrictions. Just as constitutional as the USCG justification. If it means that much to them to prevent recording, then they can supply their own Defense Counsel! Kind of like legislating around court decisions…

  2. Mike Berens says:

    If justice is the goal of the military justice system – there is no reasonable justification for a denial of a request for a verbatim transcript of testimony (especially from a key witness) at an Article 32 hearing.

  3. Tami says:

    Don’t the defense counsel have their own paralegals? Is the government refusing to provide the defense with a copy of the recording? If the defense has a copy of the recording, then they can make their own transcript (no need for a certified transcript for impeachment purposes) and they are not required to provide a copy of their transcript to the government (attorney work product), since the government is just as capable (and has more resources) of typing up its own transcript. Of course then, the government would be required to give a copy to the defense as part of discovery, but at least that way, they don’t create appellate issues.

  4. Cloudesley Shovell says:

    What is the Coast Guard so afraid of? To me, the only explanation for these draconian restrictions is fear. The goal of the system is to find the truth. Is that was they’re afraid of?

    So what’s the Coast Guard going to do if a spectator just shows up with a tape recorder? What if a reporter shows up with a tape recorder? Or one on them knows shorthand and writes stuff down? What if the DC or accused just sets up a tape recorder on the table?

    My experience was that Art. 32 proceedings were recorded as a matter of course. If the defense wanted to transcribe any or all of the Art. 32, the gov’t just handed over a copy of the tapes and said, “Here you go; transcribe away.” On those occasions where the defense did make a transcription, the gov’t would ask for a copy. The standard defense response was, “You have the tapes too; transcribe away.” Seemed to work pretty well.

  5. Dwight Sullivan says:

    Tami,

    The problem in these cases is there is no audio rcording and the CA won’t let the DC record the proceedings without complying with all of these requirements.

  6. Lee Marsh says:

    Cloudesley,
    Defense Counsel have tried to just tape the proceeding. In one case, the DC just placed a digital recorder on the table and pressed “record.” The IO attempted to order the DC to secure taping. The DC refused, saying that only the CA could make that order. Accordingly, the IO got the CA on the phone who ordered the DC to secure taping. Now, to prevent those circumstances, the 32 convening order often contains language that the proceeding may not be recorded. I complete agree, though; what are they afraid of?

  7. Ama Goste says:

    Not sure what service or time period you were in, Cloudesley (your alter ego, anyway), but even getting a specific witness’ testimony recorded verbatim is a rare occurrence, much less taping an entire 32 hearing.

  8. Nancy Truax says:

    I don’t know what the Coast Guard stats on acquittals are, but it seems to me that a transcript of the 32 would be just as useful to the government in assisting the witness prepare his or her trial testimony.

  9. Bill C says:

    Granted, my experience with CG 32’s is limited, but in the few I have done, I always wondered how the IO knew that the proceedings were not to be recorded, absent an ex parte conversation with somebody on the government side. Just the same as when I do an AF 32 and I am told by the IO there will be no transcript provided. Again, how does he/she know this is the “policy” unless somebody from the government tells them in advance?
    Either way the CG policy is, to quote another thread on this site “guano stupid.”

  10. Anonymous says:

    This kind of stuff makes us all look like amateurs.

  11. Bridget says:

    Bill C: Isn’t no transcript provided different than no transcript permitted?

  12. Phil Cave says:

    Just did a CG 32 where I had eight people come, they all took notes, and I designated them as defense counsel assistants under MRE 502 (makes the notes privileged). Two of them used their laptops, and I plan on asking for three of them as witnesses for trial in the event of a need to enter prior inconsistent statements. This will likely get denied, so we’ll see how it goes with the MJ. The IO also agreed to provide me a copy of his notes which he will use to prepare a report. So that makes him a potential witness also.
    All of the other services record 32’s. And so far all of them have given me a CD copy the same day or at least within a few days. What I do with the copy is then up to me.
    If I make a transcript I don’t have to give it to the prosecution unless, under MRE 701(b)(3) (the final sentence) I intend using the transcript “in my case in chief.” Note the RCM language on reciprocal discovery. If I use the transcript for cross-examination, then the only possible rule is MRE 613 as to the applicable portion of my transcript.
    Fear of inconsistent statements. This is especially so where the testiliers can’t keep their story straight. The Coast Guard could deal with this quite easily in their military justice manual and take the decision away from the CA. Direct recorded 32’s it seems to me.

  13. Anonymous says:

    If the CG can’t do a proper CM, they need to stop doing them. Just TAD/TDY the accused to a Navy CA. They use Navy DCs; might as well go all the way and leave mil jus to those that give the accused some semblance of due process. The least prepared, unprofessional TC -kve ever observed was a coastie. They need to stick to guarding the coasts.

  14. Lee Marsh says:

    Bill: The Article 32 Investigating Officer’s Guide in the USCG Military Justice Manual states, “Verbatim transcripts. Generally, Coast Guard Article 32 investigations are not transcribed or recorded. However, a CA may direct that a verbatim transcript be prepared or that the investigation be recorded on video or audiotape. If so, the government representative should coordinate the transcription or taping. Any request from the defense to record the
    proceedings or a request for a verbatim transcript should be forwarded to the CA for action. As IO, you do not have authority to override the CA’s decision. The transcript or tapes, if prepared, should be included as enclosures to the report of investigation and are, of course, subject to defense discovery. United States v. Marsh, 21 MJ 445 (CMA 1986).”

    My last USCG Art 32 Convening Order had the express statement, “The proceedings shall not be recorded, and no verbatim record shall be made of this hearing.” This seems to be more the norm nowadays.

  15. Anonymous says:

    I dont think it is about fear, it is about money. They don’t want to pay to record. Simple as that.

  16. Lee Marsh says:

    Anon 1404: I have to disagree. It does not cost the Government ANY money to allow the Defense to record the proceedings and do with it as they like (See Phil Cave’s 1316 response).

  17. Govt Counsel says:

    That is BS…seen plenty of weak Navy DC’s in the PAC NW and AK…most recently in a 32 in D13…BTW, the Navy does not do all defense work, CG Jags have had great success at the NLSO’s in fact the Navy has requested more…

  18. Marineone says:

    I guess it was from all the great training the CG and Marines get a the “Naval” Justice School…you trained ’em!!!

  19. Anonymous2 says:

    This is service policy and not about the quality of the JAGs. I have worked with some great JAGs in all services. The Coasties I have argued against and had on my trial team have been great lawyers. Keep the high road gents!

  20. Phil Cave says:

    I prefer to work with CG TC’s. My experience with them so far is that they aren’t into the bull**** and gamesmanship, or lack of knowledge of the rules that I see elsewhere. I’ve also had CG defense counsel on (Navy) cases and again they are universally good to work with.

    This issue is about a bad policy; whether it be protecting witnesses from being impeached or money or convenience. They could do just as easily as happens in Army cases for example, put a digital recorder on the table and press “record.” The recorders are cheap and pretty good sound these days. The playback software is free on the internet. Or, as the Marines do, they use FTRGold, and the playback software is also free on the web. If this is about money it needn’t be or they need to get a new budget officer.

  21. Dew_Process says:

    Time out. Under what authority can a CA issue a “lawful” order to an independent DC to prepare his/her case in a manner that they see fit? The IO has no jurisdiction or authority either to preclude or interfere with the Defense.

    If as CAAF claims, Article 32’s are “judicial” proceedings, the presumption should be to record, period. When one side – the government – claims the power to record or not, the system is inherently fair. The anti-recording policy may not per se violate the Constitution, but the application in the face of a bona fide defense attempt to do so, sure seems to violate Due Process.

  22. Phil Cave says:

    There certainly have been references to an IO as a quasi-judicial officer, so perhaps you get quasi-due process? See, e.g. United States v. Thompson/i, 46 M.J. 472 (C.A.A.F. 1997).

    However other CAAF cases do speak of a judicial proceeding. See, e.g. United States v. Bell, 44 M.J. 403, 406 (C.A.A.F. 1996).

    And when there has been a recording I like to use this quote:

    “[M]ilitary due process required the Government to provide transcripts of former testimony to be used in effective rebuttal of his testimony in the instant case.

    While we rule that the right to this transcript is based on military due process, we note that federal courts have ruled that adequate representation of indigents includes payments for transcripts of testimony given in prior proceedings in the same case. See generally United States v. Rosales-Lopez, 617 F.2d 1349 (9th Cir. 1980), aff’d, 451 U.S. 182, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981); United States v. Johnson, 584 F.2d 148 (6th Cir. 1978), cert. denied, 440 U.S. 918, 99 S. Ct. 1240, 59 L. Ed. 2d 469 (1979).
    United States v. Toledo, 15 M.J. 255, 257 (C.M.A. 1983).

  23. Tami says:

    I was under the impression that all the services actually recorded their Article 32 hearings. I don’t think it’s asking too much to expect the government to buy a $70 digital recorder then download the audio files to a computer, burn a copy to a CD, then hand it over to defense counsel. The defense counsel is then free to do whatever it wants with the copy, and if the defense counsel wants a transcription, then transcribe away.

    In my humble opinion, the CA forbidding the recording of an Article 32 hearing is an unlawful order. It unnecessarily and unreasonably interferes with the DC’s ability to effectively represent the client, since the DC would be unable to provide objective evidence of what was actually said at the hearing, and is not able to effectively prepare for trial. It unnecessarily and unreasonably interferes with an accused’s right to effectively confront witnesses at trial, and to present extenuating, mitigating, and potentially a defense at trial. If for whatever reason a defense witness at an Article 32 hearing decides not to cooperate at trial, then the defense is hosed because there is no recording from the Article 32 hearing, and thus no ability to develop a verbatim transcript.

    I would hope the government rethinks its position on this–the government would get hosed too, if a key prosecution witness refused to cooperate at trial, because then the government would have no transcript to introduce at trial, due to the lack of a recording.

  24. Phil Cave says:

    You presume the military judge would not allow the prosecution to call the IO to testify from his or her notes what the person said. Personally I don’t think that procedure would be correct or adequate. That procedure would completely ignore the specific questions asked, the specific response, and any nuances in the specific wording. But I’m not going to be the military judge who would have to answer that question.