A recent unpublished opinion authored by Judge Krauss, writing for a three-judge panel of the Army CCA in United States v. McBride, No. 20120315 (A.Ct.Crim.App. Nov. 25, 2013) (link to slip op.), caught my attention for this passage:

The matter we address involves the nagging difficulties* associated with defense counsel submission of requests for waiver of automatic forfeitures.

Slip op. at 2. The footnote explains:

We continue to see a variety of problems associated with an appellant’s express desire to submit requests for deferment and waiver of automatic forfeitures. This case reveals the apparent confusion of deferment with waiver of automatic forfeitures, a confusion not all too uncommon. The distinction is set forth in Articles 57 and 58b and RCM 1101(c) and 1101(d). This case reminds us as well that a request for waiver of automatic forfeitures need not wait until submission of an accused’s matters under R.C.M. 1105.

In McBride, the appellant specifically asked his counsel to seek both deferment and waiver of automatic forfeitures (deferment being the postponement of the running of the forfeitures, from automatic execution 14 days after the sentence was adjudged, to the date the convening authority acts; waiver being the six-month forgiveness of the forfeitures, for the benefit of a dependent, authorized by Article 58a(b)). While the counsel in McBride submitted matters, the matters included only a request for deferment, and not the appellant’s desired request for waiver. But the CCA finds no prejudice, concluding that the circumstances and wording of the convening authority’s action reveals that he would have disapproved an explicit request for waiver had it been made.

As Judge Krauss points out, deferment and waiver are confusing. But two weeks after Judge Krauss notes “nagging difficulties,” the new Chief Judge of the CCA, Brigadier General Charles Pede (link to news report of appointment), writes a notable separate concurring opinion to a per curiam decision in United States v. Mack, No. 20120247 (A.Ct.Crim.App. Dec. 9, 2013) (link to slip op.):

I concur in the analysis and result reached by my brethren. I write separately to call attention to the system failures in the post-trial processing of this record of trial. I call particular attention to the roles of those principally responsible for the administration of justice. While the omissions in this record are insubstantial, thus warranting no relief, I am concerned that the omissions reflect a larger ‘blocking and tackling’ weakness among our practitioners.

Slip op. at 2-3 (emphases added). In Mack, the appellant pleaded guilty to three specifications of desertion and two specifications of wrongfully using marijuana. A stipulation of fact, with sixteen enclosures, was admitted at trial. The enclosures were “merely reports and military forms attached as corroborative evidence of the offenses to which appellant pleaded guilty, offenses fully described by appellant during his providence inquiry and again in the narrative portion of the stipulation of fact.” Slip op. at 2. The enclosures were admitted into evidence along with the stipulation.

But then the enclosures were omitted from the authenticated record of trial.

Chief Judge Pede spares few punches as he calls attention to this (ultimately “insubstantial”) omission:

First, the Chief Judge notes the “tactical” decision to append a whopping sixteen enclosures to a stipulation of fact in a simple drug/desertion case:

This case is on the simple end of trial practice. It is a clean plea to absence and drug offenses with simple post-trial rudiments. The failures in this case took root in the tactical decision to include the now-missing documents as enclosures in the stipulation of fact. . . . I highlight this tactical call simply to emphasize that our trial practice produces appellate issues from many decision points. There are, indeed, many cases where attachments to a stipulation of fact are not only prudent, but necessary. The practice point here is to ensure a conscious cost-benefit evaluation takes place. Practitioners must be mindful of this – especially senior defense counsel and chiefs of justice who must engage their subordinate counsel energetically and appropriately throughout the trial process.

Slip op. at 3. Next, on the omission of these enclosures from the record even though they were admitted into evidence, he emphasizes that:

the inclusion of admitted exhibits in a record of trial is ‘military justice 101.’

Slip op. at 3. And he highlights the many officials involved in this process:

It is axiomatic that trial counsel are responsible for the production of the record. While not an absolution from responsibility, historically our system has tended to cede this function to the chief of justice. While both the trial counsel and the chief of justice failed to identify the missing enclosures, so apparently did the court reporter who took possession of the exhibits at trial. Even more perplexing is that the military judge authenticated the record without the enclosures. The judge’s oversight was further compounded by the failure of the legal administrator, the deputy staff judge advocate and the staff judge advocate to identify the omission and fix it.

Slip op. at 4 (citation omitted). Then Chief Judge Pede concludes with some strong commentary:

This causes one to ask: Who is reading the entire record of trial cover to cover? The ‘rose’ in military justice practice is traditionally pinned on the chief of justice. The lesson here is that our system demands more than a single point of failure or success. All practitioners, especially staff judge advocates, must ensure that the rights of an accused are not compromised, and that the interests of the government are protected. If the simple things in simple cases reflect inattention and lapses in proficiency, what does it say about the rest of our quite complicated practice of military justice? Those who administer our system of justice must redouble their efforts to ensure that systems are in place to avert the creation of preventable appellate issues and litigation such as those in the instant case.

Slip op. at 4. The Chief Judge does not identify any of “those who administer our system of justice” by name, but a Brigadier General hardly needs to write a judicial opinion in a minor case to raise concerns about “inattention and lapses in proficiency” within the Army’s military justice community. Moreover, besides the timing of this opinion (in the wake of Judge Krauss’ opinion in McBride) this also appears to be the very first case considered by General Pede since he assumed the role of Chief Judge just six weeks ago.

That makes this a pretty clear warning shot from the new Chief Judge.

14 Responses to “The Army CCA sees “nagging difficulties” and “system failures””

  1. A TC says:

    “It is axiomatic that trial counsel are responsible for the production of the record.”  It is also axiomatic that military justice has archaic practices such as prosecutors being responsible for preparing the record of trial.  Rather than issuing callow calls for redoubled effort, BG Pede might consider that the system, to include creation of the record of trial, should be redesigned along more modern federal practices. 

  2. stewie says:

    Wouldn’t simply more court reporters and paralegals solve 85% of this problem?

  3. Former DC says:

    It seems like the esteemed Chief Judge doesn’t like the defense counsel making a record. So what if there were sixteen enclosures? That’s good practice. I’m sure they were included for a reason. No matter how simple a plea might seem, it is the duty of the defense counsel to protect the record and document everything so appellate defense has everything preserved for them. There is nothing more frustrating than having a great appellate issue that is waived or not preserved and rendered sterile. In my civilian practice, sixteen enclosures to a routine motion is nothing. I’ve done 40 or more. It sure looks like the Chief Judge wants defense counsel to act in a manner that boils down to ineffective assistance of counsel. I respectfully suggest he rethink that position, as I hope this is simply a case of not thinking the matter all the way through before authoring his opinion.

  4. stewie says:

    Am I missing something? Because usually it’s the government that puts enclosures in the stip of fact, not the defense, and the problem with making them enclosures instead of simply marking them as additional government exhibits (or defense exhibits for that matter) is BECAUSE it protects the record and preserves evidence.  Much less likely the court reporter misses actually exhibits than attachments to a single exhibit.
    I think you’ve got it backwards.  1. It was a knock on TC not DC, and 2. It was all about protecting the record.  But if I’m missing something please tell me.

  5. stewie says:

    Just came back from a run so please ignore the fractured English…actual, not actually, and exhibits protect the record, not enclosures.

  6. Former DC says:

    Stevie: no disrespect, but yes, you are missing something. Yes, a stip of fact is technically a prosecution exhibit. Yes, the TC is responsible for it. But no, I don’t think most enclosures on a stip would originate from the TC. In my experience, the DC adding these documents to a stip as a condition on agreeing to enter into it is a great way to put mitigating evidence before the judge and make the TC do it. It is even better than doing it in providency, because it puts the clout of the government behind the facts good for the accused and forces the judge to read them, which, of course, allows him to consider the mitigation in sentencing. Since most of the time, the TC wants the stip, many TC’s can be a bit careless about what enclosures they agree to. I have heard more than one TC…counseled…on the subject in a post-hearing debrief by the judge. That is why I suspect the Chief Judge said what he did, because either the enclosures were somehow found or he just could figure out what they were, saw they were favorable to the defense and were of questionable utility to the government, and was trying to send a message to stop this. 
    BTW – I am very sympathetic to the typos. iPad spellcheck is a real pain when typing like this. It’s all good. 

  7. Charlie Gittins says:

     “I have heard more than one TC…counseled…on the subject in a post-hearing debrief by the judge. ”  And, gents, that is one problem . . .  judges who take it upon themselves to “help” prosecutors learn. That is not in their lane — that is the job of the Chief of Justice, Senior TC and SJA, NOT the MJ critiquing tactical decisions and performance.  Until the MJ system decides to be a real adversary system, with the MJs actually taking a neutral role and not one as a de facto Government QA assistant, the system will continue to be less than a system of justice.  I stopped participating in these post-trial meetings after I saw a MJ give a trial practice class to an inexperienced prosecutor.  If I had kept going, I would have had to make an ethics complaint for the appearance of favoritism.  

  8. ExTC says:

    I have to agree with Stewie. In my experience, it is TC that stuff a stip with usually worthless enclosures out of the fear that something is needed for appeal.  Or to support some stupid charge that they are worried about the accused being provident. (Ever notice it’s the small charges with esoteric providency, the large crimes are usually pretty short.) DC aren’t stuffing the stip with appellate issues and supporting enclosures, are you kidding me. This is pretty obvious the CCA taking a swipe at TC. Pretty plain.
    Charlie, if the MJ had given DC tips on better arguments that may have swayed a members panel to acquit, I assume your pen would have been dripping with ethics complaint ink, aghast at the discussions. 

  9. Cap'n Crunch says:

    @Charles Gittens:  I don’t know… I have seen trial judges offer constructive criticism (and praise) for attorneys after trying a case.  I just got done with a trial in U.S. District Court.  The judge offered advice for counsel on both sides after it went to the jury.  Now, if it is one sided, then it is a problem.  And, how is this any different than talking to the jury after to get feedback (again, both sides present)???

  10. Johnny Ringo says:

    Post-trial feedback is an ethical violation?  I’ve seen judges in state, federal and military courts offer constructive feedback to both prosecutors and defense counsel after trial is adjourned.  I’ve personally been the beneficiary of such advice while sitting on both sides of the aisle.  I find it hard to imagine how constructive criticism/advice given after adjournment might amount to an ethics violation.  I suppose someone could offer up an extreme hypothetical, but common examples like telling a TC to reconsider a charging decision if faced with similar cases in the future, or advising a DC to read up on new developments in 6th amendment caselaw strikes me as impartial advice which improves the practice of law across the board.  Not attacking here, but I’m curious as to how one might see that as an ethical violation unless the judge clearly was only seeking to improve the future performance of one side.  

  11. Lieber says:

    Stewie and ExTC are obviously right.  And Gittins is wrong on this one…MJs always give advice to both sides in “bridging the gap” sessions, same for federal judges…

  12. ArmyTC says:

    I’ve never seen a stip where the defense tried to preserve any record by adding enclosures. They’re usually there because I want them in there for one reason or another.
    I’ve never seen an MJ “counsel” either side on what things they agree to, rather on what things they choose to present/how they choose to present them. Every Bridge The Gap I’ve been to the judge will usually have advice for both sides, comments for both sides and constructive criticism for both sides. 
    Only once have I seen a judge use stern wording against counsel, and it was against a civilian who repeatedly argued facts not in evidence, made baseless ethical allegations against counsel on the record and in front of the panel, wantonly disobeyed pre-trial orders from the court, tried to argue that his client shouldn’t be sentenced to forfeitures because he was “expensive enough,” and later (at the bridge the gap) said that the issues his team had in filing motions and following orders were based on the fact that he and his client were in different locations. That judge was not happy, and he let it be known.

  13. stewie says:

    I’ve also never heard or seen of the defense adding exhibits to the stips during my time on either side of the aisle and I’ve been doing this for more than a hot minute, and I doubt I would have done it during my time on the government side.  If the defense wants something admitted, they can do it.  Besides, it’s clear and was clear to me that the preference was to not have attachments to the stip at all but to introduce everything as independent exhibits for the very issues that were raised in this case.
    So while I miss stuff all the time, don’t think I missed anything here, and I think this is not a slam on DC but on the government (mostly–everyone is slammed for inattention to detail).  As for BTG…yeah no post-trial feedback is mighty fine so long as both sides receive it equally.  Just like Gateway sessions where both sides are invited are fine.  The only time I have a problem with the MJ in a teaching role is when it is done during trial for the government…where the MJ basically does the TC’s job in questioning witnesses, or making objections.

  14. Christian Deichert says:

    I remember one of my bridging the gap sessions as a defense counsel downrange was one of the most helpful AARs I’d gotten on a case. Then-COL (now BG) Reinert was the judge on the case. After some summary niceties to the TCs about good job on this and that, he turned to me and gave me pointed tips on cross-examination and impeachment based on what he’d seen at trial. I got the benefit of COL Pohl’s advice on other bridging the gap sessions in my time at TDS. So, while it may be judge-dependent, I would certainly argue that it continues to be both helpful and ethically sound, as long as it speaks to both sides.