An entry in CAAF’s Daily Journal for last Thursday, February 23, makes me wonder what has to happen to cause an accused to request extraordinary relief at an Article 32:

Misc. No. 12-8019/NA.  Tarrell D. JILES, Appellant v. Commanding Officer H&S Battalion, MCB, Quantico, VA, LTCOL Michael F. CARDOZA, In his official capacity as Art. 32, UCMJ, Inv. Officer, and United States, Appellees.  CCA 200800190.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

What’s next, writ appeals after a 7-day pretrial confinement review?

Note: there are, best I can tell, three appellees, the CO of H&S Bn (Col Brennan), the Art. 32 Officer (LtCol Cardoza), and the United States (the rest of us).

19 Responses to “Extraordinary relief at an Article 32?”

  1. Cap'n Crunch says:

    I can think of a few instances where extraordinary relief may be warranted.  Maybe the 32 officer compelled testimony that violated the attorney-client privilege.  Maybe the 32 officer compelled testimony that violated the spousal privilege, or some other privlege, or introduced evidence from a RCM 302 conference.  Absent some sort of violation of a privilege, I can’t see any sort of grounds to have a writ appeal in a 32 setting.

  2. Michael A says:

    I think ABC v. Powell is the usual example of extraordinary relief at the 32 stage:
    ABC, Inc. v. Powell, 47 M.J. 363

  3. Charles Gittins says:

    ABC, Inc v. Powell and McKinney v. Jarvis.  Order to close entire Article 32 hearing — Powell was appointing authority who ordered it closed; Jarvis was the IO who was going to not permit any spectators or press.  Cooperation by DC and the press in filing for extraordinary relief resulted in a ruling from the CAAF Bench about 5 minutes after the case had been argued, ordering the hearing open to the public.

  4. Bill C says:

    Same thing happened to me at an Article 32 at Fort Carson. IO closed, press filed writ, ACCA reversed.  Quickly.

  5. anon says:

    When an accused makes an objection at that stage, the impact of an Article 32 violation on the trial is likely to be speculative at best. The time for correction of such an error is when the military judge can fashion an appropriate remedy under R.C.M. 906(b)(3) before it infects the trial, not after the members, witnesses, and parties have borne the burden of trial proceedings. See Mickel, 9 C.M.A. at 327, 26 C.M.R. at 107; R.C.M. 906(b)(3). In the event that an accused disagrees with the military judge’s ruling, the accused may file a petition for extraordinary relief to address immediately the Article 32 error. See ABC, Inc. v. Powell, 47 M.J. 80 (C.A.A.F.1997) (granting petition for extraordinary relief and issuing a writ of mandamus).  United States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 2007)

  6. Socrates says:

    Yes, the Art 32 bar  for extraordinary relief is set Olympian high.

    I think the Art 32 investigation officer wanted to do a complete body cavity search, along with the inevitable “turn sideways and cough.”  I’d file too.

  7. Jason Grover says:

    Docketed on Thursday, denied on Monday:

    Misc. No. 12-8018/NA.  Tarrell D. JILES, Appellant v. Commanding Officer H&S Battilion, MCB, Quantico, VA, LTCOL Michael F. CARDOZA, In his official capacity as Art. 32, UCMJ, Inv. Officer, and United States, Appellees.  On consideration of the writ-appeal petition, it is ordered that said petition is hereby denied without prejudice to Appellant’s right to raise the issues asserted during the course of normal appellate review.

  8. NW says:

    United States v. Davis, 64 M.J. 445, 449 (C.A.A.F. 2007) pretty much killed raising 32 issues on direct review because Davus states Art 59(a) applies.  Because Art 32 errors rarely have a direct impact on the findings and sentence, there will rarely be 59(a) prejudice from a sham Art 32.  The only way to seek relief from a shoddy 32 where the IO does a canned investigation (e.g., take hearsay statemetns of complaining witnesses, thereby denying right to confront) is to petition for extraordinary relief .  Then CAAF denies Jiles’ appeal stating he has the right to raise the issues asserted during the course of normal appellate review.  Looks like the right to a Rules-compliant Article 32 hearing is pretty much dead.

  9. anon says:

    The way I interpret Davis is the defense should raise the objections at the Art 32, after arraignment raise the issues via motion before the military judge and then use the writ process if the NJ denies the relief requested. 

  10. NW says:

    To anon, your interpretation of Davis is correct.  Perhaps Jiles jumped the gun and did not get the denial from the MJ yet.  Still, CAAF’s denial stating the issues could be raised in the normal course of appellate review isn’t reassuring

  11. PhilCave says:

    Here is a link to the Jiles petition.

    NW, not jumped the gun IMHO, on target, but I understand your point.

    I had forgotten and My Liege Dwight Sullivan reminded me (after the fact unfortunately, but in time for the next one) of the Coast Guard case posted and discussed at this link.

    http://www.caaflog.com/2010/06/05/thinking-about-the-garcia-case-the-trial-defense-counsel-as-armando-galarraga/

    Reduced the CG case says if you wait you get Article 59 review.  But if you ask, you get wait until you may have an Article 59 review.  I agree there’s an argument to wait until there’s an MJ, but by that time isn’t the potential for harm already begun/happened.

    Many of you know that I cynically view 32’s as road-bumps – an inconvenience to prosecutors – on the way to trial.  Actually in the 32, completed yesterday, the GR kept saying ‘when the charges are referred to trial,’ the IO kept correcting the GR, and client was wondering ‘is this just for show?’  And many cases should end up at trial.  But if Article 32’s are intended to convey a substantial right of discovery and avoidance of bogus charges, why should the person have to wait to have that substantial right possibly vindicated.  In some sense we are in a tail wag the dog scenario.  TC’s will say, in motions, well according to United States v. Snuffy it’s OK what happened.  And then the TC says that we can get away with it because the MJ/CCA will apply Snuffy, not Article 32, R.C.M. 405, and caselaw on the substantial right.  So, IMHO Article 59, UCMJ, is not a way to evaluate Article 32 error on appeal but effectively overruling Article 32 and the relevant law on what’s supposed to go on at an Article 32.  Thus the road-bump.  To be even more cynical I’m surprised JSC has not recommended or sought repeal of Article 32 as an anachronism.

    A potential solution, amend the UCMJ to establish standing trial courts, and either have them conduct a preliminary hearing similar to civilian cases or at least be immediately available to address issues when most solvable.

    And yes Zach, writs after IRO hearings.  For example, a client is in PTC for a medium UA, some alleged drug offense, and disrespect to an NCO.  While confined he gets Manning’d.  I think that would be a writable situation once you’ve exhausted the internal “remedies.”

     

  12. stewie says:

    What is the Article 32? Civilians only get a probable cause hearing before trial and that TRULY is a speed bump, it isn’t even a speed bump, it’s more like a piece of lint on the highway. So not sure why that would solve any issues from a defense perspective, as not sure MJs would necessarily provide any higher standard, I’d guess they’d treat it much like a 917 motion, highlight bad cases but then cite the low standard and send it on to C-M. Meanwhile, you likely lose the benefits of the adversarial process (and chance to see a mini-panel of one review the charges).
    Obviously, Article 32 provides more protection, and I’m glad it does, but it STILL has a standard of reasonable grounds, which is a pretty low standard, basically probable cause. I think the role of an Article 32 is not to necessarily stop a case from going to trial (although I think in sexual assault cases it can definitely serve that function), but to simply make sure the accused and counsel have a good understanding of the charges, where things are coming from, and what they will be facing.
    It also helps the government understand their own case, and what the proper result should be (and in my thus far limited time on the government side that often means chapter 10s, RILOs, or other alternate dispositions, and sometimes, even yes squashing it).
     

  13. Charlie Gittins says:

    I am still a believer in Article 32 hearings, with some caveats.  First, Congress meant them to be more than a speed bump and CAAF should wake up and realize that they are not just a pro forma, like an arraignment and act like judges, not political appointees, accordingly.  There should be subpoena power for witnesses, not just documents that the Government wants to present, which is essentially what the rule provides for now (as recently amended).  Second, if the IO recommends that charges not go forward there should be a trip wire that requires additional procedures for a CA to ignore the IO’s recommendation — something more than “nuut uuuh!”.  (After all, the G selects the IO — if they appoint someone who is rational and actually fair, they should be bound by the recommendation, just like a grand jury that returns “No true bill.”).  I could come up with more, but that should be sufficient to get all the G hacks to flame me.  

  14. PhilCave says:

    Agree with Charlie.

    I have filed motions to dismiss when an IO finds “no reasonable cause,” as opposed to cause, but a weak case.  It seems to me that the wording of the statute and RCM require dismissal if there’s no reasonable cause found by the IO.  Of course getting a MJ to agree is a little different.  But does it make sense that after an IO finds no RC, that it gets referred anyway, gotta be something wrong with that sense-wise.

  15. k fischer says:

    Phil,

    I agree that it does not make sense that charges get referred after the IO finds no RC, but please provide the analysis under the RCM or statute that you rely on when filing your motion to dismiss. 

    I would be interested in light of the cases that are getting referred despite what the Article 32 IO says.  I’ve had one back in May where I filed a motion for UCI and due process violations where the SJA could not explain what evidence she used to determine reasonable grounds existed in contravention of the IO’s recommendation.  it was a triple victim rape case, the 32 was in December, and the motion was argued in early March.  The MJ castigated me saying, “I’ve been an SJA for 8 years, and I can tell you that I could not remember the facts of a case that I recommended referral for 3 months prior.”  This case had all kinds of interesting facts to including one of the “victims” making a video that she sent to the accused consisting of her private parts, her chihuaha, and a jar of peanut butter.  And, she couldn’t tell me one fact that she relied on to send the case forward?

    I had an Article 32 two days ago where the only evidence is the “victim’s” statement that six months prior to her reporting, she went over to the accused’s house and got sexually assaulted; his defense is that has NEVER been to his house and I believe him.  There is no other evidence whatsoever.  Her testimony was contradicted by many pieces evidence we submitted, the witnesses we called to say she is a liar and offer specific proof, and her mental status and motive to fabricate for revenge against him.  I imagine that at this particular post the charges will be referred even if I get the IO to recommend dismissal based on no RG.  I would like to file a motion to dismiss similar to the grounds you commented on.

  16. PhilCave says:

    KF,

    Stand-by.
    Many years ago in Parker, or maybe Walker, the IO and SJA told the CG no RC for DP referral.  The CG said, “i’m aggravated, so it’s DP.”  Years later and litigation later . . . .  well you know the story.

    I’ll email you. 

  17. Jason Grover says:

    Phil,

    I cannot speak to Parker, it wasn’t Walker.

  18. PhilCave says:

    My Liege DHS reminds me that it was Levelle, who didn’t get a death sentence.

  19. k fischer says:

    Thanks Phil,

    I was going to ask what DP meant, but I got it on your last post. interesting, I’ll read Levelle.