CAAF will hear oral argument in United States v. Brown, No. 13-0244/NA, on Tuesday, May 14, 2013. The case involves a challenge to the trial military judge’s ruling allowing a “victim advocate” to sit with a 17 year old alleged victim during her testimony on the merits. CAAF granted review of the following deep-format issue:
Generally, outside the military justice system, witness attendants may accompany a child on the witness stand if the prosecution shows good cause and the trial judge makes a finding of compelling or substantial need. Here, without good cause shown and without findings of compelling or substantial need, the military judge allowed a victim advocate to serve as a witness attendant for a seventeen-year-old; then the military judge referred to the witness attendant as the complainant’s “advocate” before the members. Did this procedure violate appellant’s presumption of innocence and right to a fair trial?
The Appellant was convicted contrary to his pleas, by a general court-martial composed of officer and enlisted members, of two specifications of rape of a child, one specification of aggravated sexual abuse of a child, two specifications of child endangerment, and three specifications of indecent liberties with a child, in violation of Articles 120 and 134, UCMJ. He was sentenced to reduction in rank to pay-grade E-1, confinement for forty-five years, and a dishonorable discharge.
In 2009 the Appellant was accused of having provided alcohol and pornography to his two step-daughters. He was also alleged to have sexually assaulted one of the girls, [AW], from 2004 to 2008. In 2011, AW, then almost 18 years old, testified at the Appellant’s court-martial. However, she began crying uncontrollably at the beginning of the prosecution’s direct examination. The members were excused and the military judge asked the prosecution how it would proceed. Trial counsel asked the judge to allow AW’s “victim advocate” to sit next to her in the courtroom during her testimony. Over objection from the defense, the military judge permitted the victim advocate to sit next to the witness throughout her testimony. The military judge also provided an instruction to the members about the presence of the advocate. AW then testified about the Appellant’s numerous sexual assaults of her, and the Appellant was convicted.
A three judge panel of the NMCCA reviewed the case and heard oral argument in August, 2012. It then issued an unpublished opinion that rejected the Appellant’s challenge to the presence of the victim advocate:
We find that the presence of the advocate in the bailiff’s chair during AW’s testimony, or labeling her to the members as an “advocate,” did not impinge on the appellant’s constitutional right to a fair trial or his rights under the Sixth Amendment’s Confrontation Clause. Because we reject the appellant’s claims of constitutional violations, we review the military judge’s decision to allow the victim advocate in the courtroom for an abuse of discretion, and conclude the military judge did not abuse his discretion in this regard.
United States v. Brown, No 201100516, slip op. at 7 (N-M.Ct.Crim.App. Nov 28, 2012) (unpublished).
In his brief to CAAF, the Appellant argues that allowing a victim advocate to accompany “a complainant” on the witness stand “erodes the presumption of innocence and violated an accused’s due process right to a fair trial. The accommodation is inherently prejudicial.” App. Br. at 9. The Appellant asks CAAF to apply “close judicial scrutiny” based on the Supreme Court’s decision in Holbrook v. Flynn, 475 U.S. 560, 568 (1986), and argues that the presence of the victim advocate requires “compelling or substantial need.” Slip op. at 11. Alternatively, if not inherently prejudicial, the brief argues that the presence of the victim advocate was prejudicial to the Appellant’s constitutional right to due process, and further that it was compounded by the military judge’s introduction of the advocate as AW’s “advocate,” combining to amount to a non-harmless constitutional error. App. Br. at 9-10.
The Appellant’s argument that the presence of the advocate was inherently prejudicial, requiring close judicial scrutiny, is based on the principle that “appearances matter at trial.” App. Br. at 11. The brief identifies a number of situations that have risen to the level of inherent prejudice, such as: the presence of four uniformed state troopers seated behind the defense, a defendant in prison garb or shackles, a trial judge meeting a child witness at the gallery gate and then escorting that child to the witness stand, a judge rewarding a child victim with candy at the conclusion of her testimony, and a victim advocate sitting behind the witness with her hands on her shoulders during testimony. App. Br. at 12. However, the brief notes that such inherent prejudice does not necessarily require reversal, as the Supreme Court noted in Holbrook that “close scrutiny of inherently prejudicial practices has not always been fatal.”App. Br. at 12-13 (quoting Holbrook, 47 U.S. at 568-732).
On this point the Appellant’s brief concludes that:
With [the advocate] by her side, AW became an unfairly enhanced witness, doubled in presence and power. The advocate underscored the fragile, emotional state of A.W. as she sat silently beside her. Needing someone to blame, it became far too easy to point to the man seated at the defense table–MA1 Brown.
App. Br. at 13-14. The brief notes that the military judge did not apply a balancing test or make findings of a compelling or substantial need for the presence of the advocate. Citing to state law cases, the Appellant argues that three factors apply to the provision of an accommodation like the advocate used in this case: First, there must be a clear finding of necessity; second, the defense should be given the opportunity to suggest alternatives; third, the choice of a support person matters (with a close relative a preferred selection, in order to appear as family support and not as bolstering or vouching). App. Br. at 16-18. Notably, the Appellant’s brief implicitly describes this as a case of first impression for military law, because the only similar precedent (United States v. Romy, 32 M.J. 180 (C.M.A. 1981)) was decided before the establishment of the rules allowing for the remote live testimony of a child in M.R.E. 611(d). But the Appellant’s brief notes the language of M.R.E. 611(d) that requires a military judge to make specific findings prior to authorizing remote live testimony. The brief also notes that M.R.E. 611(d) applies to a “child,” which is someone under the age of 16 at the time of the testimony, while AW was almost 18 years old at the time of her testimony in this case.
The Appellant’s brief also raises other issues, such as the failure of the military judge to conduct a voir dire of the members prior to permitting the advocate to sit next to the victim during her testimony. The brief notes that voir dire would help determine if the members would be affected by the presence of the advocate, or even if any of them knew the advocate (and a footnote observes that the record is silent on this point). App. Br. at 21. Further, the Appellant contests the adequacy of the instructions given to the members by the military judge, noting that the could be read to imply a judicial “endorsement” of the advocate’s presence, and that he “failed to thoroughly instruct the members on how to properly evaluate the credibility of AW,” using the standard witness credibility instruction with a comment that “you will evaluate the credibility of [AW’s] testimony in the same way you will any other witness.” App. Br. at 23. The Appellant’s brief concludes that all of these factors combine to make the presence of the victim advocate “inherently prejudicial” requiring reversal. App. Br. at 23. Notably, the Appellant’s merits brief does not use the term “structural error” (which requires reversal), and the Appellant’s reply brief appears to disclaim any argument for structural error.
The Appellant’s alternative argument – of a non-harmless constitutional error – is based on the position that the presence of the advocate eroded the Appellant’s presumption of innocence. The brief highlights two factors: age and enhanced credibility. First, the brief highlights that “the common thread of the state cases upholding witness attendants is a child of tender years,” but AW was nearly 18 at the time of her testimony making the accompaniment of the advocate appear as vouching for the credibility of AW rather than merely assisting a tender and fragile witness. App. Br. at 24. Second, the brief states that the presence of the advocate “enhanced the credibility of AW,” because she was a professional vice, say, a family member whose presence could have been discounted by “familial loyalty.” App. Br. at 25. Additionally, the brief claims that the military judge compounded this credibility enhancement by referring to the advocate as an “advocate,” because all of the members had received typical DoD sexual assault training and:
in this context, the term “advocate” is synonymous with “victim advocate”. In today’s times, this phrase stirs passions that are likely to invade reason and cool, rational judgment of guilt or innocence. The result is the erosion of the presumption of innocence and an unfair trial.
. . .
The fact that [the advocate] stayed alongside AW, from appointment to trial, tacitly demonstrated her belief in AW’s cause. And that belief, to a panel of members, increased the chances of conviction on grounds or other circumstances not adduced as proof at trial.
App. Br. at 26-27 (marks and citation omitted). For these reasons, the Appellant argues that the fairness of the fact-finding process was undermined, and CAAF should set-aside the findings and sentence and authorize a rehearing.
A final section of the Appellant’s brief discusses the application of 18 U.S.C. § 3509(i), which authorizes an “adult attendant” to accompany a child (under 18) witness during testimony in a judicial proceeding. The CCA noted this statutory provision in its decision. But the Appellant notes that CAAF previously found, in United States v. McElhaney, 54 M.J. 120, 125-26 (C.A.A.F. 2000), that this statute was limited to the district courts and does not apply to courts-martial. The Appellant also notes that this statute requires that the attendant be videotaped during the testimony, which was not done in this case.
The Government’s response makes four arguments:
First, allowing the presence of a victim advocate is not structural error and this Court should not further expand the small class of structural errors. Second, under pertinent regulations, a victim advocate is not an agent of the Government, but rather represents a victim, and her sitting next to a child victim of sexual assault during testimony does not sound in due process. Third, the Military Judge properly allowed a silent, nontestifying victim advocate to sit beside the testifying Victim because the Victim demonstrated that she would otherwise unable to give meaningful testimony. Finally, even if it was error, no prejudice resulted given that the Victim Advocate did not testify, and there is no evidence in the Record to suggest that she made any gestures or physical contact with the Victim, or that she impacted the Victim’s testimony in any way, and because the Military Judge exhaustively instructed the Members not to consider the presence of the victim advocate as an endorsement of the Victim’s credibility or any other matter.
Gov’t Br. at 9-10. On the first point, the Government uses the existence of 18 U.S.C. § 3509(i) to show that “not only is this practice not ‘inherently prejudicial,’ but it carries little risk of actual prejudice so long as the attendant is properly cautioned and the fact finding panel is properly instructed.” Gov’t Br. at 12. This is pretty convincing and, as discussed below, I think the Appellant’s “inherently prejudicial” argument is weak.
The Government’s next argument takes two parts. First, the Government’s brief explains that “bolstering and vouching are not constitutional issues. Expert testimony bolstering the credibility of a witness, for example, is tested for non-constitutional evidentiary error.” Gov’t Br. at 14 (citing United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010)). Further, vouching is generally an action of a party to (improperly) boost the credibility of a witness, and the Government argues that the victim advocate is separate from the Government, representing “the Victim, not the United States qua litigant.” Gov’t Br. at 14. In support of this point, the Government’s brief notes the Air Force case of LRM v. Kastenberg, No. 2013-05, 2013 CCA LEXIS 286 (A.F. Ct. Crim. App. Apr. 2, 2013) (certified by the AF JAG to CAAF). But even if the advocate is an agent of the Government (and I think that is the case), the Government still argues that the constitutional claim must fail, and any error should be tested with a non-constitutional standard. However, the brief takes a brief diversion into the requirement under 18 U.S.C. § 3509(i) that the witness attendant be videotaped:
Although Appellant now claims that the Military Judge failed to sua sponte ensure that the victim advocate’s presence next to the Victim was videotaped (see Appellant’s Br. at 32), and thus somehow “frustrate[s]” appellate review, Appellant never made that objection at trial, hence forfeiting any objection on appeal absent plain error.
Gov’t Br. at 16. This is the worst point of the Government’s otherwise strong brief. Not only did the trial judge not rely on § 3509(i) as the basis for permitting the advocate, the Appellant’s brief highlights CAAF’s prior finding of § 3509(i) inapplicable to courts-martial. But the CCA cited the statute in support of the procedure used in this case, and so too does the Government in its brief (“The use of witness attendants for child victims of sexual assault is commonly practiced throughout the United States.” Gov’t Br. at 11 (citing, inter alia, 18 U.S.C. § 3509(i))). I don’t really have any qualms with the Government’s appellate-stage citation to an inapplicable procedural rule as persuasive authority to support using a similar procedure in a court-martial. But to then say that the Appellant forfeited any claim that the full scope of that procedural rule should be considered before it’s to be given any real persuasive value, because he didn’t object to the non-application of the full scope of the rule at trial (where that rule wasn’t even being applied, because it’s inapplicable), is really, really pushing it (if not entirely paradoxical). After all, we’re talking about reasons why the federal rule is persuasively analogous, not whether it was properly applied.
The Government’s brief then tackles the presence of the advocate from a procedural standpoint, citing the military judge’s authority to control the mode and order of interrogation and presentation of witnesses and evidence under Military Rule of Evidence 611, and the judge’s responsibilities as the presiding officer of the court-martial under Rule for Courts-Martial 801. The Government characterizes the presence of the advocate as a matter within the discretion of the military judge based on “the authority to craft remedies to contingencies encountered during trial.” Gov’t Br. at 18. It was merely a “courtroom accommodation.” Id. And, the Government argues, “the accommodation made here was reasonable in light of both R.C.M. 801 and Mil. R. Evid 611, and tended to promote the purposes of the UCMJ and the Manual for Courts-Martial.” Gov’t Br. at 19.
This argument is based in part on the fact that there are procedures for the presence of an “adult attendant” for child witnesses in federal law (§ 3509(i)) and in many of the states, and in part on “the finding that AW was not able to testify but for the accommodation.” Gov’t Br. at 20. Later the brief explains: “Based on his observations of AW, the Military Judge made a “specific finding” that “[AW] was not just crying during her testimony, it was her completely unintelligible and unable to speak because she was crying.” Gov’t Br. at 22. I don’t have the record, but from reading the briefs I feel like calling this a “specific finding” is a giving it too much weight. It seems to have been more of an observation. Though, when a military judge is making observations on the record, one could certainly say that he’s making “findings.” Similar things are said about senior officers; when they make “observations” about their “desires,” those are what’s called “orders.” So I’m interested to see how CAAF treats the military judge’s observation about AW being “completely unintelligible and unable to speak because she was crying.”
The final portion of the Government’s brief explains why, even if the presence of the advocate was error, it does not cause material prejudice to a substantial right of the Appellant, as required under Article 59(a). Because the advocate was silent, the Appellant had a full opportunity for cross-examination, and the military judge provided instructions, the Government sees no prejudice. Gov’t Br. at 28-30. The brief then does a peculiar application of the five-factor test from Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), to the presence of the advocate. But Van Arsdall was about limiting cross-examination thereby infringing the right of confrontation, and the advocate didn’t testify at all, so I’m missing the point of this analysis.
A reply brief tackles a few different subjects. First, the Appellant highlights that under the UCMJ, a child is someone under the age of 16:
Appellant does not contend that witness attendants are always inherently prejudicial. This point must be stressed. In the military justice system, witness attendants may be perfectly appropriate when assisting children under the age of sixteen.
Reply Br. at 2. But this line is very artificial when the UCMJ and Manual for Courts-Martial don’t contemplate witness attendants at all. However, a clearer argument follows:
The Government, not Appellant, therefore, needs this Court to do something that other courts have not: find that a victim advocate can be seated right next to a complaining witness who the governing jurisdiction no longer considers a child.
Reply Br. at 3. This seems like a key point to me. If the presence of the advocate was appropriate (i.e., within the discretion of the military judge, as the Government claims), then wouldn’t it be just as appropriate for someone who is 18, or 28, or 80, assuming they were having trouble getting through their testimony?
The reply brief also tackles the Government’s application of M.R.E. 611(a), granting control over the mode and order of witness testimony to the military judge:
The Record demonstrates that M.R.E. 611(a) is a post hoc justification offered by the Government for the first time on appeal. The military judge did not cite Rule 611(a) when he issued his ruling. Neither did the Government. The Government invokes that rule now to try to save a conviction that resulted from a prejudicial trial practice. For all these reasons, this Court should look beyond M.R.E. 611(a) in examining this issue.
Finally, even if M.R.E. 611(a) was dispositive, which it is not, the military judge made no findings to support its application. In United States v. Collier, this Court held that a military judge abused his discretion in excluding bias evidence when he “made no findings about the likelihood that [the witness] would suffer from undue embarrassment or harassment as a result of cross-examination or the presentation of bias evidence.” In so holding, this Court noted that, “[l]ike the identical federal rule, M.R.E. 611 ‘calls for a judgment under the particular circumstance whether interrogation tactics entail harassment or undue embarrassment.’” Here, the military judge made no judgment that A.W. needed protection from “harassment” or from “undue embarrassment.” Mil. R. Evid. 611(a)(3). He made no judgment that the victim advocate was needed to “avoid needless consumption of time[.]” Mil. R. Evid. 611(a)(2). And he made no judgment that the victim advocate was needed to “make the interrogation and presentation effective for the ascertainment of the truth.” Mil. R. Evid. 611(a)(1). Under Collier, this utter lack of judgment is error. Because Appellant was prejudiced as a result, this Court should set aside the findings and sentence and authorize a rehearing.
Reply Br. at 5-6 (citations omitted). This back-and-forth over the existence or adequacy of findings on the record to support the judge’s decision to allow the advocate to sit with the witness will undoubtedly play a prominent role during the oral argument. As discussed above, I’m interested to hear the court’s treatment of what was said on the record.
Finally (and I’ve skipped a bit in the middle), the reply brief tackles the Government’s argument that even assuming error, there was no prejudice:
Assuming for the sake of argument that the Government is correct, and that AW would not have been able to testify without this accommodation, this Court should cease its prejudice analysis here. The Government concedes that the error directly contributed to Appellant’s conviction by enabling the testimony of the complaining, key Government witness. (Id.) The Government styles this reality as “due process and the administration of justice[.]” (Id.) But due process for whom?
Under the Fifth Amendment, it is a “person” who shall not be deprived of “life, liberty, or property, without due process of law[.]” U.S. Const. amend. V (emphasis added). This right ensures some basic protections for an accused against the awesome power of the government. It does not ensure a conviction.
Reply Br. at 13-14 (emphasis added). I once saw a trial-stage brief where a trial counsel argued that the Government, just like an accused, has the right to a fair trial. The Appellant’s reply brief makes it clear that the Constitution’s guarantee of due process of law is a right of the accused that shields him from the awesome power of the sovereign, and not a guarantee of the ability of the state to impose its will upon the citizenry.
It’s hard not to view this case through the lens of the current focus on sexual assault prosecutions in courts-martial, but there are deeper issues at stake. In the absence of clear Congressional or Presidential rulemaking for the provision of witness attendants at courts-martial, I don’t see CAAF allowing such a remedy to accommodate a non-child witness whose tears drown out her (presumably well-prepared) testimony, particularly in the absence of clear factual findings on the record by the military judge. I think that the court will ask both sides to address the absence of clear rule permitting such a remedy (and if MRE 611(a) is enough, then where the age-limitation is to be found). I also think that these factors give the Appellant a strong case for error (never mind other issues such as the failure to voir dire the members about the advocate, and the always fertile ground of instructional error). But I see the Appellant’s argument that it’s “inherently prejudicial” as a steep uphill battle when similar procedures are used in so many other jurisdictions. Rather, the Government’s position that AW would not have been able to testify absent the accommodation will be seen, I think, as a significant concession towards a more-traditional prejudice analysis.
The Government is in something of a catch-22 in this case. On one hand, the presence of the advocate cannot be superfluous, because then such an unusual remedy would not have been justified (and again, the paucity of findings doesn’t help). On the other hand, the more essential the advocate’s presence, the greater the prejudice resulting from her presence being found erroneous (because AW was the essential witness for the rape specifications). In my mind I can hear the Government’s counsel being asked, “if we find it was error, don’t we then have to find it prejudicial under these facts?” I’m not sure how I’d answer such a question were I the Government’s counsel…