CAAF will finish the first week of oral arguments in the September 2013 Term on Wednesday, September 18, 2013, with United States v. Moss, No. 13-0348/AR (CAAFlog case page). The case involves a trial in absentia by a special court-martial composed of officer members at Fort Stewart, Georgia, in 2011. Appellant was convicted, contrary to pleas entered on her behalf by the military judge, of desertion in violation of Article 85, UCMJ, and sentenced to reduction to E-1, forfeiture of pay for 12 months, confinement for six months, and a bad-conduct discharge.

But in this simple desertion case – where Appellant even deserted the trial – the issues before CAAF are anything but:

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.

Appellant was absent from her unit for approximately three years before she was captured and charged with desertion. Amazingly, she was not held in pretrial confinement pending trial. Her detailed defense counsel successfully negotiated a pretrial agreement that capped her eventual confinement at six months, and they began planning her sentencing case. Then, two weeks before trial, Appellant again took flight.

Appellant’s trial on the merits seems to have proceeded normally (except for the empty chair where the accused normally sits, of course). But during the sentencing phase, Appellant’s detailed defense counsel “read an unsworn statement to the panel. While reading the unsworn statement, [counsel] spoke in the first person to represent that it was [Appellant’s] statement.” App. Br. at 3. The statement explained that Appellant deserted to care for her sick aunt, one “Viola Mitchell,” who had raised her. The statement ended with counsel saying:

I wanted to come back to my unit but there was nobody else to take care of my aunt and she couldn’t be left alone. I always planned on coming back.

App. Br. at 4. Unfortunately for Appellant, her father was also in the Army, and the Government called him as a rebuttal witness to explain that there is no Aunt Viola and Appellant was raised by Appellant’s mother and himself. A panel member then asked a few questions:

Q. Sergeant Moss, who raised Private First Class Moss?

A. Me and her mother.

Q. What is the relation of Viola Mitchell to Private First Class Moss?

A. Sir, I don’t know a Viola Mitchell.

Q. You don’t know Viola Mitchell?

A. No, sir.

App. Br. at 5. Oops. Unsurprisingly, Trial Counsel emphasized the fabricated story of Aunt Viola in the Government’s sentencing argument. But Defense Counsel also referred to the unsworn statement, discussing how Appellant had found her “beloved aunt” in a terrible state.

While the panel deliberated on the sentence, the Government (perhaps in an effort to preserve as much error for the Defense as possible) “challenged the unsworn statement based on an assumption that appellant had not expressly authorized it.” Gov’t Br. at 6. The military judge held a 39(a) session to discuss the unsworn statement where the following occurred:

The military judge inquired as to whether [Appellant] had authorized [counsel] to make an unsworn statement on her behalf. [Counsel] responded that he was unable to answer the question based on the attorney-client privilege. The military judge then asked [counsel] if he knew that he was not allowed to present an unsworn statement without his client’s permission. [Counsel] then invoked his right to remain silent by stating, “Sir, I think I have to refuse to answer that question on Fifth Amendment grounds.”

App. Br. at 6. The military judge then made some important findings, including finding that it was error for counsel to make the unsworn statement on Appellant’s behalf. But he also found that Appellant was not prejudiced since the information in the unsworn statement was also in two sworn statements Appellant had made. The panel then announced the sentence.

Appellant remained absent for the post-trial process and for the automatic appeal, where Appellate Defense Counsel alleged ineffective assistance of counsel without an affidavit from Appellant, and the Army CCA ordered Trial Defense Counsel to respond. In an affidavit, Trial Defense Counsel described his “extensive pretrial preparations,” and “maintained that before she absented herself from trial, [A]ppellant insisted on presenting an unsworn statement and that [Aunt Viola] would be the ‘thrust’ of the unsworn statement.” Gov’t Br. at 7. However, Trial Defense Counsel “admitted that [A]ppellant never explicitly authorized him to make an unsworn statement in her absence and further acknowledged, only days after the trial, that he would not have made the unsworn statement if he knew that [A]ppellant’s express consent was required to do so.” Gov’t Br. at 7-8.

The Army CCA rejected Appellant’s claim of IAC, finding that Trial Defense Counsel “was very diligent in every phase of this case.” United States v. Moss, No. 20110337, slip op. at 8 (A.Ct.Crim.App. Jan 17, 2013) (unpub. op.) (opinion). The CCA also found the other issues “to be without merit.” Id., slip op. at 2 N.1. Significantly, the CCA found that Appellant “impliedly consented to [counsel] giving an unsworn statement on her behalf.” Slip op. at 5.

But the Government concedes that it was error for Trial Defense Counsel to give an unsworn statement without Appellant’s explicit authorization, citing United States v. Marcum, 60 M.J. 198, 209 (C.A.A.F. 2004) (opinion). But in Marcum, “defense counsel revealed material subject to the attorney-client privilege without receiving an appropriate waiver of this privilege from [a]ppellant.” Marcum, 60 M.J. at 210. Marcum does not per-se require “explicit authorization” for a trial defense counsel to give an unsworn statement on behalf of an accused who deserts the trial. Rather, the key holding in Marcum is:

Therefore, if an accused is absent without leave his right to make an unsworn statement is forfeited unless prior to his absence he authorized his counsel to make a specific statement on his behalf. Although defense counsel may refer to evidence presented at trial during his sentencing argument, he may not offer an unsworn statement containing material subject to the attorney-client privilege without waiver of the privilege by his client.

Marcum, 60 M.J. at 210 (emphasis added). The facts of this case involve a significant twist that distinguishes it from Marcum: Appellant had told the story of “Aunt Viola” in two sworn statements to her command!

[Counsel] was left by his absent client to determine, on his own, what was the best way to present mitigating evidence about [Aunt Viola]. Other than an unsworn statement, the most direct evidence to support appellant’s claims were her sworn statements to her command, marked for identification as Defense Exhibits B and C. These exhibits were not introduced by the government during the merits phase and [counsel] knew he faced a hearsay objection if he tried to admit them. Assuming, arguendo, that he could have introduced the sworn statements under relaxed rules of evidence during sentencing, they would have been rebutted in the same way that the unsworn statement was rebutted. Moreover, to the extent that appellant’s claims about [Aunt Viola] contained in the sworn statements could be rebutted, rebuttal would be more damning because it would show appellant’s untruthfulness to her command while under oath.

Gov’t Br. at 18. With these facts – particularly the testimony of Appellant’s father –  it’s hard to understand why Trial Counsel (yes, the Government counsel) didn’t introduce the sworn statements himself. It’s even harder to understand why Trial Counsel raised the issue of the unsworn statement with the judge, creating a nasty appellate issue in the easiest desertion case ever. It’s also unclear why Trial Defense Counsel refused to answer the judge’s question about his knowledge of the rules on Fifth Amendment grounds. If an attorney incriminates himself by admitting less than perfect knowledge of the law, we’re all in deep trouble!

Something about this case just smells funny. Trial Counsel played gotcha with Trial Defense Counsel, who felt that he needed to invoke his right to remain silent. Then appellate division piled on without the customary affidavit from the accused alleging deficient performance. Perhaps someone in the Army has it out for Trial Defense Counsel.

As an aside, I’d like to know more about how Appellant managed to get out of pretrial confinement (she got credit for 18 days) after being absent for three years. At Camp Lejeune, where I’ve been a trial defense counsel since early last year, an absence of just a few months will all-but guarantee pretrial confinement until the trial. Did the allegedly conflicted and ineffective Trial Defense Counsel secure her release? If so, he deserves an impact award.

I predict two topics will dominate the oral argument. First, does the law really require an explicit authorization from an absent accused for counsel to give an unsworn statement on the accused’s behalf (assuming no issues of confidentiality in the contents of the statement) and, if so, how is that authorization memorialized in the record without raising a confidentiality issue anyway (I have a feeling it could go something like this: “It’s OK judge. Before the accused went UA, she signed this form authorizing me to give an unsworn statement on her behalf and in her absence. Yes, I suppose the form does provide evidence of her intent to flee. No, I didn’t tell anyone about her plans to flee. What do you mean I have the right to remain silent?”).

And second, even if the law does require an explicit authorization, how was Appellant prejudiced.

Case Links:
ACCA opinion
Blog post: At a trial in absentia, defense counsel gave an unsworn statement, then invoked. CAAF understandably curious…
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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