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.

Yikes!

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.

4 Responses to “At a trial in absentia, defense counsel gave an unsworn statement, then invoked. CAAF understandably curious… (plus another new grant)”

  1. stewie says:

    Reading the opinion, I think I agree with ACCA. DC was in a tough position, he did do at least some investigation, and the accused appears to have authorized prior to deserting the strategy and the particular substance of the unsworn.

  2. Phil Cave says:

    1.  Would this have been a valid strategy if she had been present and read the statement herself.  I think yes.
    2.  Is a defense counsel required to litigate a case in the absence of a client.  I think yes, which would include making tactical decisions during the presentation of evidence on the merits.
    3.  If the accused is UA at the time of trial, the default is officer members (although there’s an interesting question of what about the accused who has already selected enlisted or MJA on the record and it was approved before going UA – may be a case on that).  A MJ entered plea of NG is entered by the MJ for an in-absentia trial.  The absence waives the opportunity to testify, so it’s an election of sorts.  No legal problem so far.
    4.  So, is there a default for a statement on sentencing.  That’s the first question that has to be reached here, IMHO.  And I don’t think there is, unless you conclude the UA waives ANY statement.  But that would make “to make no statement at all,” a default.  If you do conclude NSAA is the default, then counsel erred.  Go back to my point about the merits.  What if the accused had signed a written MJA request the day before going UA?  I’m inclined to think that until presented in open court on the record and accepted by the MJ, you have an officer members case still by default.
    5.  I would not ding this DC for making a choice on something that is an open question.  My goodness, what if he remained silent and not presented the issue to the members.  An ethical appellate counsel could legitimately raise IAC based on what’s in the ACCA opinion.  This Scylla and Charibdis situation might ought to lead to a different result, but not IMHO IAC.
    6.  Where’s the Appellant – still UA?  Here’s my, I think pragmatic solution.  Set-aside the sentence and order a sentence rehearing.  Have trial for the UA from trial, then instruct the members that they have to sentence her for the current UA (possibly desertion) and for a prior UA in which “guilt has been established BRD.”  Not much different from the mixed plea case where after findings the members find out, Oh BTW . . . . 
    7.  As a final thought, From Blunk we got Blunk letters (I know you kids may be unfamiliar with Blunk letters which is a good thing).  But does this case presage Moss letters – depending on how CAAF resolves it. 

  3. SFC V says:

    DC was damned if he did and damned if he didn’t.  Tough spot to be in. 
     
     
    I am of the belief that an accused who absents herself from trial after it has begun waives the right to challenge the tactical decisions of counsel made in her absence.  If you want a say in the conduct of your defense you need to show up.  By failing to show I think the accused waived the issue.  The accused should not be allowed to create error, by absenting herself, and then complain of that error later.

  4. Stackhouse says:

    This issue was dealt with somewhat in US v. Pimienta – a Camp LeJeune case when I was the Senior Defense Counsel there.
    The CCA didn’t take the issue up as one with merit – however, I think that issue VI was just this matter: 
    VI. WHETHER APPELLANT SUFFERED PREJUDICIAL ERROR WHEN HIS TRIAL DEFENSE REVEALED PRIVILEGED COMMUNICATIONS WITHOUT APPELLANT’S PERMISSION DURING THE SENTENCING PHASE OF APPELLANT’S TRIAL IN VIOLATION OF MRE 502 AND 511?
    http://www.jag.navy.mil/courts/documents/archive/2008/PIMIENTA,%20F.S.%20200600788%20PUB.pdf
    It was a tough case – very sad facts, negligent discharge while accused was allegedly playing with/cleaning/dry-firing  his pistol – or at least something like that…it was a long time ago.
    I watched most of the trial from the cheap seats, the trial defense counsel did a great job, but defending an empty chair is tough.  It was strange when the jury came back with a verdict and the judge, upon returning the verdict form back to the president of the court-martial, turned to the dense counsel and said “Captain _____, please rise.” The same happened with sentencing.  I seem to recall the defense counsel made an passionate plea for leniency in an unsworn statement on behalf of Pimienta…but I could be wrong.
    As a side, Pimienta’s return to custody was negotiated by the same defense counsel and NCIS made it look like they single-handedly captured one of their most wanted with press releases, etc.  A successful plea was negotiated on the UA charge and substantial clemency granted on the manslaughter court-martial sentence as well.  Like I said, he did a great job – but it was an interesting issue to say the least.