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.

10 Responses to “Thinking about the Garcia case: the trial defense counsel as Armando Galarraga”

  1. Anonymous says:

    I agree the CGCCA got it wrong in the sense that they should have just quashed this ridiculous practice at the writ stage.

    But, given that their argument was ostensibly, and unfortunately, supported by law, which is you get a cross, you don’t get a meaningful cross (which is a ridiculous legal principle), then when would there ever be a right to tape an article 32 hearing?

    The only real reason is for cross/impeachment, and the lack of a transcript doesn’t mean you can’t do A cross examination/impeachment.

    The problem is with that bit of law that means your right to cross-examination is basically satisfied if the person on the stand is breathing and able to speak.

  2. cgittins says:

    I have had this issue come up in a couple of cases. Was this a rape or sex assault case? I’d bet it was. In a CG Article 32, I was denied the right to a verbatim transcript (same with a later AF 32). With my client’s permission and areement to pay, I hired a local court reporter as my “assistant” to take notes during the article 32 hearing. She sat in the gallery and took “notes” which she later transcribed into a verbatim. Of course the V was not prepared for my 32 cross and at trial I impeached her with the 32 transcript. Result — acquittal. Yeah, the accused is entitled to expert assistance and to counsel at no expense to the G, but sometimes, you need to convince your client that spending a little money may save the client some time in jail. I am 2 for 2 with this practice when the G says no V transcript.

  3. Dwight Sullivan says:

    Charlie,

    Right you are. The charges in Garcia were aggravated sexual assault upon a substantially incapacitated person, in violation of Article 120 amd ,wrongfully furnishing alcohol to minors in violation of Article 134.

  4. cgittins says:

    I did this in a CG case maybe 10 years ago. Now I am wondering if I was the impetus for the rule.

    This is an easy issue — court stenographer takes “notes” and creates a later V transcript. It costs the client money but it is ALWAYS worth it, particularly in a he said, she said sex assault case (is there any other kind in the MJ system?) I just recalled that I did this same thing for a Navy Chief select that resulted in aquittal. The $1,000 to 2,000 additional cost is well worth the expense for the client and the G has no argument that it is not proper. If witnesses can take written notes on paper sitting in the room, my assistant can take stenographic notes using their quite non-disruptive machine.

    And, they get to charge the G for a copy of the transcript.

  5. Anonymous says:

    Here are some thoughts for DC that really wants to fight this BS practice:

    Request the CA that a recorder is provided. He’ll deny. Then request the IO permission to record. He’ll deny because the appointing letter will likely contain a proviso that recordings aren’t allowed. So far, you’ve exhausted reasonable avenues.

    At the 32, put the device on the table, announce that no investigation will take place unless the examinations are captured, and press play. Tell the IO and TC that you cannot possible provide adequate representation for your client unless you have the means to produce a verbatim transcript. MRE 801(d)(1) can hardly be used to its intended effect if you’re forced to rely on IO reports or witness recollection. And MRE 804(b)(1) cannot be used at all. Just because the Coast Guard has a light caseload and rarely encounters situations at trial where 804(b)(1) is invoked, that doesn’t mean you should have to walk into trial knowing you cannot use it at all. This isn’t so farfetched in the military, considering the frequency with which witnesses deploy, PCS, separate, etc.

    Also tell the IO that you will not obey any order from him or the CA to remove the device. You believe any such order would be unlawful and you’re under no obligation to obey (of course, before you do any of this, make sure you have top cover from your command). The IO/CA is then put in a difficult position. One recourse is to have you or the device forcibly removed (unlikely). Another recourse – the more likely one – is that you’ll be told that no 32 will take place unless the device is gone. Your response should be that if the device leaves the room, so are you and your client. Make sure you note on the record that your refusal to participate in an unrecorded 32 does NOT constitute waiver.

    I had a case not long ago where this Kabuki theater played out (note, I was good friends with CG trial counsel and I sort of tipped my hand that I’d be doing this). The CA went with Option C – backing down and allowing the investigation to proceed while we ran a digital recorder (which provided excellent sound quality, by the way). The CA could easily have taken the other tact by refusing to budge. We’d have walked out and the Gov’t would have considered our departure to constitute a 32 waiver. Charges would have been referred and we’d have great grounds to argue for a new 32. We’d also have the very sort of reversible error CGCCA seems to be looking for with its two Garcia opinions.

    (ps – charges were withdrawn, we took an OTH in lieu and some sex addiction counseling. Not a bad outcome)

  6. Tami says:

    Mr. Gittens,

    If the Congressional folks get their way regarding reimbursement of fees for folks who have been acquitted, then maybe they should also include fees for having to hire someone to do a verbatim transcript? When the gov’t realizes it can get a recording for way cheaper than forcing the defense to pay $2K for the gov’t’s nonsense, maybe that will change their tune.

  7. Balkan Ghost says:

    Colonel Sullivan,

    Best. Post. Title. Ever.

  8. JimmyMac says:

    “Also tell the IO that you will not obey any order from him or the CA to remove the device. You believe any such order would be unlawful and you’re under no obligation to obey (of course, before you do any of this, make sure you have top cover from your command).”
    You can always fall back upon the argument that POTUS/CinC is not a natural born citizen and therefore those orders are illegal. Hey, let’s get the birthers in here!

  9. Anonymous says:

    Can anyone provide any input on what the CG’s hang up is with 32 recording? Denying a verbatim transcript of a 32 I can understand ($$$) but pressing play on a digital recorder/ FTR Gold/ old-school tape player is free. Not to mention, those recordings are just as helpful to TCs for case prep and impeachment as they are to DCs.

  10. Anonymous says:

    Hmmm, I think I would like to be the TC in your Art 92 court-martial. Last time I looked, the DC does not get to dictate how the Art 32 will be conducted. Much as you might like the proceedings to be recorded, nothing in the manual or case-law makes that mandatory. If I were the IO, I would give you one shot to turn off the recorder. If you refused, I would order you out of the room and proceed in your absence. Someone has to be in charge of the Art 32, and it surely cannot be the defense counsel. Bet I would win at the appellate level too.