At a trial in absentia, defense counsel gave an unsworn statement, then invoked. CAAF understandably curious… (plus another new grant)
On Thursday CAAF granted review in the (I’m not sure what adjectives to use here) case of United States v. Moss, No. 13-0348/AR, with the following issues:
I. Whether Appellant was denied her Sixth Amendment right to effective assistance of counsel where the defense counsel made an unsworn statement on her behalf when she was tried in absentia and there is no evidence that she consented to the unsworn statement.
II. Whether Appellant was deprived of her right to conflict-free counsel when her defense counsel made an unsworn statement without her consent and subsequently invoked his Fifth Amendment rights and failed to assert that appellant was prejudiced.
III. Whether the military judge committed plain error when he allowed the defense counsel to make an unsworn statement on behalf of Appellant when she was tried in absentia.
IV. Whether the military judge abused his discretion when he found that there was no prejudice when the defense counsel read an unsworn statement without Appellant’s consent and then failed to instruct the panel to disregard the unsworn statement and Sergeant First Class M’s rebuttal testimony.
The ACCA’s opinion is here. On the invocation issue, the ACCA said the following in a footnote:
We find the additional assignments of error—that the military judge abused his discretion by allowing the unsworn statement, that the military judge erred by not instructing the jury to disregard the unsworn statement (and related rebuttal testimony), and that appellant was deprived of her right to conflict-free counsel when her trial defense counsel subsequently invoked his Fifth Amendment rights after being questioned by the military judge about the unsworn statement—to be without merit.
CAAF also granted review in Unites States v. Payne, No. 13-0345/AF, with the following issue:
Whether the military judge improperly instructed the members of the elements for creation of child pornography.
The AFCCA’s opinion is here.