Fireman Garcia’s trial defense counsel should be as angry as Armando Galarraga must be this morning.
Mr. Galarraga, you will recall, was deprived of being immortalized for pitching a perfect game by a blown call at first on the 27th (and should have been final) batter he faced. LT Nathaniel R. Gross, JAGC, USN, and his client Fireman Garcia were deprived of a recording of the witnesses’ testimony at Fireman Garcia’s Article 32 investigation due to a blown call on a petition for extraordinary relief.
Let’s look at what LT Gross did. First he submitted a request to the CA that either the government record the 32 or that he be allowed to do so. Denied. The next day, he submitted a reconsideration request. Denied unless the defense clears ridiculous hurdles. Yeah, you can record the Article 32, the defense was told, just as soon as you finish mucking out the Augean stables. The Garcia defense team then sought extraordinary relief from the Coast Guard Court. Denied. They then filed a writ appeal with CAAF. Denied. At trial, LT Gross moved to reopen the 32. Denied.
When the case went up on appeal, CGCCA played the role of Bud Selig. CGCCA says the ruling was probably wrong, but it’s too late to do anything about it. Do you know when it wasn’t too late to do anything about it? When Garcia’s defense team asked the Coast Guard Court for extraordinary relief which the Coast Guard Court denied. Nor was that the first time the Coast Guard Court declined to review limitations on defense counsel recording of Article 32 hearings. You may recall the denial of extraordinary relief and a writ appeal three years ago in the similar case of United States v. Morton, 65 M.J. 91 (C.A.A.F. 2007).
Extraordinary relief should be rare. And in military practice, it certainly is. But this situation is precisely when a military appellate court should issue a writ. A Coast Guard CA adopts a position regarding taping Article 32s that the Coast Guard Court recognizes would probably be held erroneous if the court were to reach the issue. By the time the case reaches the direct appeal stage, it’ll be too late to do anything about that error. And that abuse of discretion leads to identifiable harm to the accused due to its adverse effect on his confrontation rights.
Instead of following the MLB model, here the Coast Guard should have followed the NHL model, where certain controversial calls are immediately referred to the NHL offices in Toronto for a definitive resolution.
Through its two Garcia opinions, the Coast Guard Court appears to be attempting to nudge CAs to allow defense counsel to record Article 32s without precondition. If that nudging doesn’t work, the next time a CA denies a defense request to record an Article 32 or grants such a request only if the defense satisfies certain conditions, the defense should once again file a petition for extraordinary relief arguing that CGCCA’s own case law establishes that the issue can’t be addressed adequately during the normal course of appellate review, thus necessitating a writ. CGCCA should then use that petition for extraordinary relief as a vehicle for finally reaching the merits of the question. And if it once again declines to do so, CAAF step in and decide the issue via a writ appeal.
Mr. Galarraga should have a perfect game. And LT Gross should have an audiotape of the witnesses’ testimony at Fireman Garcia’s Article 32 hearing.