Remember the Article 62 appeal in the Army case of United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (link to unpub. op.)? It’s the case I wrote about last November, in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing.

In an unpublished decision in United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (available here and here), the CCA grants a Government interlocutory appeal in a sexual assault case involving an alleged child victim who refuses to testify at trial. The military judge prevented the Government from admitting the recorded pretrial statements of the alleged child victim. But the CCA reverses, finding that the pretrial statements are admissible because the Defense had the opportunity and similar motive to cross-examine the child when she made the statements during her testimony at the Article 32 hearing.

This was followed by a note in mid-January that the Accused petitioned CAAF for review of the Army CCA’s decision.

Last Friday, CAAF ordered a stay of the trial proceedings:

No. 14-6003/AR.  U.S. v. Robert J. TRANK.  CCA 20130742.  On consideration of Appellant’s motion for a stay of proceedings, it is ordered that said motion is hereby granted pending further order of the Court.

24 Responses to “CAAF issues a stay of proceedings in Trank”

  1. Charlie Gittins says:

    Wow.  How can it be a fair trial if the accuser has renounced  her former Article 32 testimony and refuses to testify at trial without T-immunity?  So the G gets the benefit of the prior false testimony favorable to the G, but none of the negatives that would be illuminated due to the change of “truth.”   I think the MJ got it right.  The G should not benefit from perjured testimony with the members being ignorant of the facts and without the cross examination called for by the significantly changed facts and circumstances.  As usual, the ACCA sided with the G, which should, as a matter of law require CAAF  to grant the Petition.

  2. Tami says:

    Zach, have you considered a second career as fortune-teller?  :)  How many CCA decisions in the last year has CAAF reversed?
     
    The headaches this will create for SVCs….
     
     

  3. Matt says:

    This case unfortunately highlights the problem with many of our trial counsel.  Too many believe their job is to win a case, however possible.  A purported victim refuses to testify at trial because her 32 testimony was false.  The trial counsel then attempts to use what he or she has to know is perjured testimony to try to win a conviction.  If a defense attorney knowingly put on a witness who was going to commit perjury, they would be rightly condemned.  But when it is the government, it is somehow ok.

  4. Lieber says:

    Matt:  I’ve never seen a TC intentionally put on testimony they knew to be false.  If they did they should be disbarred.
    Now I have issues with ACCA’s decision here but a teenager “recanting” her testimony (quite possibly after pressure from her mother) in no way indicates that her prior testimony was false.  This is often an issue with domestic cases of course…

  5. Cloudesley Shovell says:

    Completely off topic, but on this day in 1987, for the first time ever, a uniformed lawyer appeared before the Supreme Court to argue a case.  LCDR Robert Bruce, USCG, in Solorio.

  6. k fischer says:

    Lieber, 
     
    Regarding your response to Matt’s point, if the TC’s were not “intentionally” putting on testimony they knew to be false, perhaps they lacked the competence, i.e. were too stupid, to understand that the testimony was false.  Either way, its not good for the system.  
     
    And, lets face it, most Judge Advocates don’t possess the courage of The Weirick, or even LTC Helixon for that matter, to stand up for what’s right.  Side note, I have a hunch, based on nothing but what I read in the paper and my knowledge of the ways things work in the world, that we are about to see the Army’s verson of The Weirick in US v. Sinclair……….

  7. stewie says:

    Well, the TC would likely say it isn’t about false testimony then, it’s either false now, or she is traumatized and doesn’t remember.  I know that I defended a case where a alleged child victim said one thing, then recanted, and government went forward because they believed the original claim and not the recantation.  Now, we got her on the stand to recant and got the acquittal, but i didn’t think the TC were violating ethics by going forward (common sense/wisdom maybe but not ethics).
    It’s only unethical if the TC knows that the allegation is false and goes forward anyways…doesn’t seem the case here.

  8. Lieber says:

    k fischer:
    re: the Sinclair case….sometimes “personal reasons” actually have nothing to do with the Army. 

  9. AF JAG says:

    ALCON, perhaps we should all be a bit more careful before lobbing what amounts to professional misconduct allegations at counsel when we are not personally involved in the case. 
     
    Lieber’s comments are well taken in that regard, i.e. that not all “recantations” are created equal.  Here, there is arguably at least a reasonable probability that this teenage girl might have been pressured by her mother to “recant” her prior allegations in order to save the family bread-winner from prosecution and the family from financial ruin.  If what’s at play here is “I wish I never said it” versus “It’s not true” those are two ENTIRELY different things.  Either way, these facts are a far cry from an adult victim dealing with a non-family member accused.  So absent more facts, lets cut the prosecutor a little slack before assuming the worst.
     
    More to the point, I think it is unresponsible and unprofessional for attorneys to engage in mud-slinging, particularly UNINFORMED mud-slingling.  Or how about at least qualifying your remarks to that a factual predicate actually matches your conclusion, e.g. “If the victim’s recantation was truly voluntary without undue influence by her mother, then the TC’s aggressive move to admit her prior testimony is highly improper.” 
     
    As it is, these incessant claims that ALL proesecutors are government hacks, hungry for victory at any cost, and heedless of their obligations under the RCMs, MREs, and own rules of professional misconduct, need to stop.  As do disrespectful assertions that “most judge advocates don’t possess the courage . . . to stand up for what’s right.”  Those who make such allegations themselves lose credibility in doing so because you demonstrate, by contrast, that extremism is not your enemy, but rather, just the “wrong kind” of extremism (i.e. that which might convict your client).
     
    Most of us blogging here are either current or previous commissioned officers, excpected to advocate zealously while still acting professionally and civily–so let’s start acting like it.  Prosecutors and defense counsel, we are all professionals pursuing justice (albeit from different perspectives and different angles)–let’s presume that unless and until facts authoritatively dictate otherwise.
     
     

  10. k fischer says:

    Lieber, 
     
    I agree.  But, sometimes “personal reasons” include “I personally do not believe that the accused committed a crime, so I must remove myself from the case” or in the very least, “I have a reasonable doubt as to whether the accused committed a crime and this case is unwinnable, so I have to remove myself from this case.”
     
    According to the local ABC affiliate
     

    It says on February 8, 2014, Helixon shared with lead defense attorney Richard Scheff that “he believed (the accuser) had lied, and that charges that relied solely on (the accuser) should be dismissed.”
     
    The introduction to the motion describes how Helixon felt ethically bound to remove himself from the case after concluding there was reasonable doubt as to Sinclair’s guilt on the sexual misconduct charges. It goes on to say he was ignored or rejected by the Staff Judge Advocate and Convening Authority, and concludes that “the decision-makers in this case fear the adverse personal and political consequences of taking the ethically, morally and just action of dismissing the charges that rely on the Government’s discredited primary accuser.” It ends by saying the case should be dismissed as a result of “unlawful command influence.”

     
    Or, Mr. Scheff could be lying and LTC Helixon never said he felt ethically bound to remove himself from the case. 

  11. Zachary D Spilman says:

    Matt says:
    . . . A purported victim refuses to testify at trial because her 32 testimony was false.  The trial counsel then attempts to use what he or she has to know is perjured testimony to try to win a conviction. . . . 

    I hate to let the facts get in the way of a good story here Matt, but as I wrote in my first post about this case:

    The alleged child victim (identified as “ST”) is Appellee’s stepdaughter. She testified under oath at the Article 32 pretrial investigation and was cross examined by Appellee’s defense counsel.

    ST’s testimony at the Article 32 was consistent with a prior sworn statement she made to criminal investigators. Slip op. at 3. But after Appellee was arraigned, “the trial counsel received a phone call from a lawyer who had been retained by ST’s mother to represent ST. The lawyer stated that ST would recant if called to testify and she no longer wished to testify. He further stated that under advice of counsel, ST would invoke her right against self-incrimination if called to testify.” Slip op at 4.

    The Government then obtained a grant of testimonial immunity from the Department of Justice.

    (emphasis added). Notably, testimonial immunity wasn’t enough… ST wants transactional immunity.

    Perhaps AF JAG knows something(s) about this case that we don’t. Considering how little we really do know, that’s not saying much. But there’s obviously more to this story than a mere recantation. And there’s a huge universe of difference between seeking a preliminary ruling on the admissibility of pre-trial testimony of a witness who will refuse to testify at trial (what’s actually happening in this case) and knowingly presenting false testimony to a tribunal.

    But, I’ll add that as far as this goes:

    AF JAG says:
    . . . As it is, these incessant claims that ALL prosecutors are government hacks, hungry for victory at any cost, and heedless of their obligations under the RCMs, MREs, and own rules of professional misconduct, need to stop. . . .

    I wholeheartedly agree.

  12. k fischer says:

    AF JAG, 
     
    I agree.  I cannot say that “most Judge Advocates don’t have the courage, etc.”  What I should have said was that I have not met many Judge Advocates who would go to the lengths that The Weirick would go to and place their career in such perill for what they believe is right.  I’m not saying that they don’t exist or are not plentiful.  I’m just saying that I haven’t met them.  Nor, am I saying that I would blame them if they did not go to those lengths.  I’m just saying that it is inspiring when you see someone who fights for what they believe is right without concern for their own well being.  And, we will see where this issue takes us with LTC Helixon, which he sounds like he’s got some chutzpah if what is reported by ABC11 is true.  
     
    And, I am saying this based on my experience of not seeing prosecutors remove themselves from high profile cases within one month of trial or Judge Advocates filing IG complaints against the highest ranking officer of their respective services.
     

  13. Matt says:

    I seem to have ignited a firestorm.  Just to be clear, I did not say that all or even most trial counsel behave this way.  But I have seen extreme overzealousness in too many cases.  Whether this is due to bad faith or simple inexperience I can’t say.  However, pretending that it doesn’t happen, especially in sex assault cases, is only burying your head in the sand.  And by the way, the fact that the alleged victim is so adamant about wanting transactional immunity, seems to support that her earlier testimony was false.

  14. stewie says:

    Well Matt, my (plagiarized) rule is don’t look to bad faith when ignorance is an option.
    The vast majority of the time, overzealousness has reasons other than ethics.  Lack of adult supervision and ignorance are two big ones.
     
    And no, the fact that she wants TI does not necessarily suggest her earlier testimony was false, or suggest that the TC believe it to be false.

  15. afsvc says:

    And no, the fact that she wants TI does not necessarily suggest her earlier testimony was false, or suggest that the TC believe it to be false.

    Agree with Stewie: what the request for TI says to me is that she knows the government is oh so loath to ever grant TI and it provides one more hurdle to climb with regard to getting her on the stand.
    Also wholly agree with the civility commentary.

  16. k fischer says:

    Matt, 
     
    And, my plagiarized rule is that if you believe that the Government is acting dirty, then litigate the issue by filing motions, but make sure that you are on the bright side of right.  You will never be invited to play SJA golf on Friday afternoons.  But, that is the only way you will get the Government to change its ways whether due to ignorance or evil.
     
    And, as a former Trial Counsel, your comments did not phase me a bit because I know that I was not an overzealous prosecutor, but I have encountered some that would fit your description.
     
    Regarding LTC Helixon and assuming he felt ethically olbigated to withdraw from the case because he did not believe BARD that Sinclair was guilty, I might be tempted to go ahead and try the case because there are still reasonable grounds.  But, during closing arguments, remembering my professional responsibility to exercise candor towards the panel, I would probably agree that the panel should have reasonable doubt based on the evidence I heard and move onto the other charges.  Of course, that would violate the victim’s Sixth Amendment right to a fair trial, wouldn’t it.  
     
    And, has anybody caught the irony that this, again, is a case where a Commander has disregarded the Judge Advocate’s advice to dismiss the sexual assault charges and moved forward with the Court martial?  I’m beginning to think that Senator Gillibrand’s bill is looking better and better each day…………I would rather deal with an overzealous prosecutor than a Commander who is succumbbing to UCI.

  17. Brian lc says:

    When the Sinclair story broke, most comments seemed to agree that statements from a defense counsel, a zealous advocate, who should only be repeating facts in a light most favorable to his client (and should otherwise stay silent), should be taken for what they are.  But, now, the defense teams version, of what the TC said, absent of context, and with the CDC’s ascribed meaning, are taken as fact.  Lets be more careful.  Would it surprise anyone if a defense team was in the dark about personnel changes in the government team?
    And, no, I have no inside information. 

  18. stewie says:

    I concur and said as much earlier…we don’t know for sure why LTC Helixon withdrew yet, and even assuming he did so expressly because of perjury concerns, that doesn’t mean he’s right, and reasonable minds/prosecutors might not agree with him.
     
    Too many folks want to push the unethical easy button.

  19. Charlie Gittins says:

    Well, I will say, I see G ethical violations under every rock.  I don’t see this as an ethical issue.  I see it as a factual issue.  Put Helixon on the stand and ask him under oath if he made the statements ascribed to him; put on whatever defense witness heard the conversation, to include the DC who quoted him and let the chips fall as they may. If necessary, call BG Wilson and General Odierno and the CA and cross them.  
     
    I had the CA in McKinney on the stand at a pre-trial hearing for improper referral.  He was a Medal Of Honor wearer, Major General.  He told me the McKinney referral was the “most important” thing he had done as a commander in his entire career.  Of course I played that out some to show just how important he thought that decision was.  So, after getting all that “how important”, “most important”, incredibly significant that he “get it right” stuff in the record I asked him, did you read even one page of the Article 32 transcript before referring the charges.  His answer was “No” and the reporters went running to file their stories.  And, the outcome was predictable.  He relied on people being fed shit from the TCs.

  20. k fischer says:

    I am ashamed of myself for automatically thinking that Mr. Scheff is being candid with the court.  Despite what three local news organizations reported, I should definitely refrain from discussing on a military law blog that it sounds true.  
     
    Especially in this case where a female Captain and a male General, both of whom are married, engaged in an adulterous affair, which upon the Captain learning that the General was texting other women, decided to report the affair, and when she was the subject of the investigation, the female alleged that the male GO forced her twice to pleasure him orally in the deployed environment where, I am assuming and of course I don’t know for sure, both parties are armed and she has all her teeth.  Then, she allegedly lies under oath regarding a phone that has texts and pictures between her and the GO and the Trial Counsel withdraws from the case one month prior to trial, which according to the criminal defense attorney, who we don’t know if we can trust him, was because according to the TC the Army was pushing the case, everyone knows he’s not guilty, and the TC can’t continue with the case because he believes there is reasonable doubt.  After all that, the Army replaces him with another LTC and the case is going to continue.  In addition, all of this has occurred in a case that has taken two years to get to trial during a period of time in which it would be ineffective for a defense counsel to refrain from filing a motion for relief due to UCI based on statements the Commander in Chief, or the Commandant of the Marine Corps in a USMC court martial has made, not to mention GO’s being forced to retire or having their promotions held up by certain members of Congress because of the decisions they have made regarding courts-martial for sexual assault.
     
    Anybody who speculates regarding this case that the criminal defense attorney’s statements in a motion filed with court sound true has really crossed the line.  Once again, I apologize; I can’t imagine what I was thinking.

  21. stewie says:

    Bit of a difference between harmless speculation and declaring the government unethical. 

  22. k fischer says:

    Who declared the Government unethical?  To me, it sounds like LTC Helixon did the ethical thing and withdrew from this case as described in the defense’s motion, which this opinion assumes is true for the basis of said opinion without formally declaring that it is the truth.  I have no reason to doubt the facts contained in this motion, particularly in todays politically charge environment concerning sexual assault in the military, inappropriate statements made by the chain of command, and promotions being held up by Congress.  I mean, I could understand the righteous indignation if none of this stuff was going on, but c’mon, Stewie.
     
    People share their opinion that the defense is probably right about the facts contained in their motion and its like they shot the family dog:  “Oh!  You said that the Government is unethical!  You said ALL judge advocates who are TC’s are unethical!  You said none of them have courage!  You lack civility because you are speaking about a TC who probably lacks supervision or is ignorant.”
     
    I guess I could get upset, too, about the statements made about defense attorneys, if my skin wasn’t so thick:  “I want to remind everyone that Mr. Scheff is a member of the bar of a state who is in good standing.  Just because he is a criminal defense attorney, you accuse him of misleading the court regarding LTC Helixon’s statement regarding the case.  How dare you be so prejudice against defense attorneys!  I feel personally afronted based on those uncivil statements made about Mr. Scheff, and would like to remind everyone that he, just like every other criminal defense attorney, is just trying to do their job.”
     
    In honor of Mr. Ramis, RIP, lighten up, Francis.
     

  23. stewie says:

    I think your second paragraph is a radical reinterpretation.  This thread started with Matt weighing in about Trank and talking about ethics, it morphed into talking about Sinclair, with perhaps implicit, questioning of the government’s ethics there as well (and not pretending that things haven’t been said in other threads recently).  No one that I see is saying that if you think the Defense is right about the facts, you are per se saying the government is unethical.  The defense can be right, and it not be unethical.  It’s not unethical to have the “wrong” opinion/decision about a case.  (relative quotes not ironic quotes).

  24. Tami says:

    Here is the bottom line–people are kidding themselves if they think the alleged victim’s recantation and insistence on transactional immunity don’t change the defense’s motive for cross-examination.  Whether she lied in her statement and at the Article 32, or her mother pressured her into recanting, those are ripe topics for DC to question her, and her motive for recanting didn’t come up until after the Article 32.
     
    As far as TCs being overzealous, I have seen the full spectrum.  Competent TCs litigating zealously and within the bounds of ethics, getting just results, and a couple of TCs who became so emotionally invested in their cases that they didn’t really care how they got the conviction, as long as they got it.  So they got what they deserved when the verdict came back as acquittal.  I even saw one TC go so far as to threaten DCs with UCMJ action for “tampering with evidence” (i.e. getting the Article 32 recordings copied) and accusing their own law enforcement agents of “colluding” with DCs for their clients to provide false exculpatory statements.  Fortunately, that TC also got what was coming to him in the acquittal in a rape case, which was the biggest case of his career.  $250,000 down the drain.