A recent unpublished opinion authored by Judge Krauss, writing for a three-judge panel of the Army CCA in United States v. McBride, No. 20120315 (A.Ct.Crim.App.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.