In two recent decisions on Government interlocutory appeals under Article 62 the Air Force Court of Criminal Appeals splits the difference, granting one appeal and denying the second. Both cases involve sexual assault allegations, both cases involve evidence that was lost in part due to Government inaction, and both opinions are authored by Judge Weber.

The first case is United States v. Yarber, Misc. Dkt. No. 2013-25 (A.F.Ct.Crim.App. Feb. 20, 2014) (link to order). The appellee is charged with offenses that include two specifications of abusive sexual contact in violation of Article 120. The charges are related to the appellee’s sexual contact with the alleged victim while the two of them were at an on-base dining facility. The victim reported the contact and was interviewed by law enforcement. During the interview she reported that the appellee sent her inculpatory text messages. Law enforcement didn’t retain the phone or do a forensic search, and the phone was eventually lost. However, a Security Forces patrolman did handwrite copies of the messages.

Surprisingly, the military judge responded by prohibiting the alleged victim from testifying at all: “At a pretrial session, the military judge suppressed all testimony from [the alleged victim] after determining the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act when [her] cell phone was lost.” Order at 3. Reversing this ruling, the CCA rejects all three bases after noting that “the military judge orally ruled on the defense’s motion,” and “[h]e did not issue findings of fact – oral or written – and he merely referred to the evidence generally in explaining his ruling.” Order at 5. Key to the CCA’s conclusion is that:

[the patrolman’s] transcription of the text messages provided comparable evidence to the lost cell phone that served as an adequate substitute. TSgt BB testified her transcription of the text messages was “98 percent accurate,” with only one alteration that did not change the substance of the messages. A substantially verbatim transcript of text messages is the very definition of “comparable evidence.” The military judge’s analysis completely ignores the fact TSgt BB copied down the text messages essentially verbatim.

Order at 6 (citations omitted). The court also notes the largely inculpatory nature of the messages: “it is difficult to see how the entirety of the text messages – which contained several admissions by the appellee – could have been ‘favorable to an accused’ and therefore exculpatory.” Order at 5. The CCA’s final conclusion is “the military judge abused his discretion in finding the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act. As no violation occurred, there are no grounds to suppress SrA EH’s testimony.” Order at 8.

But it’s a very different story in United States v. Seton, Misc. Dkt. No. 2013-27 (A.F.Ct.Crim.App. Feb. 24. 2014) (link to order) where the military judge dismissed the charge with prejudice as a remedy for the Government’s failure to preserve the video recording from a military dormitory’s surveillance system.

The appellee is charged with one specification of sexual assault in violation of Article 120, “alleging the appellee caused bodily harm to Airman First Class (A1C) BB through nonconsensual vaginal intercourse.” Order at 1. The facts of the “nonconsensual vaginal intercourse” are that:

In the weeks leading up to her birthday, A1C BB and the appellee engaged in some amorous activity short of intercourse on more than one occasion. The night of her birthday, A1C BB entered the appellee’s room and they talked for a short period. They progressed to kissing and then sexual intercourse, which A1C BB agreed was initially consensual. A few minutes after the intercourse began, however, she told the appellee “we shouldn’t be doing this,” because she had a boyfriend, and she wanted to stop, or words to that effect. She later reported that, in her mind, the intercourse (which she said lasted a total of five to ten minutes) was nonconsensual starting when she made these statements. According to A1C BB, the appellee continued for another 30 to 90 seconds past that point before intercourse concluded. Shortly after this incident, A1C BB reported it to her friend and then her boyfriend before making a formal report alleging the intercourse (or some portion thereof) constituted a sexual assault.

Order at 2 (emphasis added). This looks like the so-called “one thrust” theory (i.e., “just one thrust after she says ‘no,’ and it’s sexual assault”), and its weaknesses as a basis for a sexual assault prosecution are obvious. It’s also a terrifying distortion of the law. Of course consent can be withdrawn, and consensual encounters can become non-consensual when one party goes too far, but human sexual encounters just don’t turn on and off like a light switch. Especially mid-coitus.

The appellee was interviewed by law enforcement and gave a statement in which he stated that the encounter was consensual and he mentioned “a video surveillance system in the dormitories [that] would confirm certain aspects of his account about their interaction before and after the alleged sexual assault, and he voiced support for agents to retrieve the video.” Order at 2. The agents viewed the video but did not obtain or preserve a copy, and 14 days later it was automatically overwritten (additionally, an intervening typhoon reset the recording system). Later, at the Article 32 pretrial investigation, “Trial counsel erroneously responded ‘the video cameras at the dorm were not working that night due to typhoon damage.'” Order at 3.

A few months after this, the Defense produced an affidavit from a Technical Sergeant (TSgt) who was the dormitory leader and who had shown the video to the law enforcement agents. The affidavit explained that the video system was functioning at the time of the encounter, and the TSgt later testified from memory that “portions of the video . . . contradicted [the alleged victim’s] previous statements in at least three respects.” Order at 3.

On the basis of this testimony, the military judge concluded that the Government’s failure to preserve the video did not violate Article 46, nor was it the product of bad faith, but that the Government violated R.C.M. 703(f)(2) (which addresses “evidence is of such central importance to an issue that it is essential to a fair trial). He concluded that because the alleged victim’s credibility “was an issue of central importance in the court-martial,” it was appropriate to dismiss the charge with prejudice.

The CCA affirms the judge, finding that the video is of central importance:

The military judge reasonably determined A1C BB’s credibility was a central issue in the case and the video may have supplied a basis to impeach A1C BB’s earlier statements about the incident. In short, only two people know for certain what happened in the appellee’s dormitory room; no other direct evidence is available concerning what transpired in that room. Video that apparently would have directly impeached the credibility of one of those two people is reasonably categorized as “of such central importance to an issue that is essential to a fair trial.” R.C.M. 703(f)(2).

Order at 6. Additionally, the CCA determines that testimony is no substitute for the video. Quoting the military judge’s ruling, the CCA notes that, “The old adage, “A picture is worth a thousand words,” comes to mind at this point.” Order at 7.

22 Responses to “AFCCA grants and denies Government appeals over lost evidence”

  1. RKincaid3 says:

    To be sure, the statement…
     

    “we shouldn’t be doing this”

     
    …is NOT the same as “stop” or “don’t.”  It is a statement of mind that does NOT translate into a command that the other party must obey, unlike the words “stop” or “don’t” (or non-verbal actions like trying to push him off–which could only rasonalby mean “stop” or “don’t”).

  2. Advocaat says:

    Seton was a joy to read; kudos to the defense for uncovering the govt’s incredible bumbling, and to the trial judge and appellate court for holding the govt accountable.

  3. k fischer says:

    Counterintuitively, as a taxpayer, I am really glad that the Air Force appealed the dismissal in US v. Seton .  Not because I am worried that Seton is roaming the halls looking for another rape victim, but rather, I am glad that the facts of absurd cases that are being tried to prove that the military takes sexual assault seriously was well documented.  Kudos to Judge Weber for having the courage to dismiss this case with prejudice, as apparently the Convening Authority did not.
     
    When I read the facts, I cannot fathom, other than an innocent man was being tried for sexual assault for CYA’s sake, how this case even made it past an Article 32.  And, I don’t know who the brain trust was that came together to decide Seton should face court martial, but it doesn’t matter.  Assuming this order contains all the salient facts of this case, the only two choices regarding the decision to refer I can think of are: Cowardice or incompetence?  
     
    For anyone who thinks my opinion is uncivil, this is merely my opinion based on the facts of this case as outlined in the order.  If there is some fact that I am not privvy to, then perhaps my opinion would change and I would apologize for losing my head. But, I am a little more concerned about Seton who was flagged, was not promoted, was investigated for at least a year, was cooperative, and still faced a prosecution under the weight of the Government under facts that it took me about 15 minutes to figure out is bs.  For anyone who thinks, “Well look, the system worked,” I wonder how Seton feels about this little year long hiccup in his career, so the Air Force can show it is tough on sexual assault and the system works?  And thank God this was an interlocultary appeal by the Government, as opposed to an Article 66 appeal from Seton, as it very well could have been in today’s climate that is rife with UCI and Congressional meddling.

  4. John O'Connor says:

    Both of these decisions look right to me, at least as the facts are explained by the CCA.

  5. Tami says:

    Here’s a case where the guy was convicted of rape in Maryland for getting an extra pump in 5-10 seconds after she said stop:  http://www.washingtonpost.com/wp-dyn/content/article/2008/04/16/AR2008041602921.html
     
    Seems to me that once penetration occurs, if the other person says no or stop, there is no rape as long as there is no additional force (i.e. no more pumping).

  6. Zachary D Spilman says:

    Thanks for that news article Tami. I hadn’t seen that case before. But the following sentence from the opening paragraphs of the opinion of the Maryland Court of Appeals (available here) is significant:

    we conclude that the trial court did err by failing to more specifically instruct the jury on post-penetration withdrawal of consent, and that the crime of first degree rape includes post-penetration vaginal intercourse accomplished through force or threat of force and without the consent of the victim, even if the victim consented to the initial penetration.

  7. k fischer says:

    I lost my first contested court martial as a TC on facts quite similar to these, with the exception that the accused wrote in a sworn statement in his own handwriting, “We had consensual intercourse where I ejaculated.  As I was remounting her, I heard her say, ‘It’s getting late.  I really need to go.  You really need to stop.’  I continued having sex with her until she began crying, at which point I dismounted.”   He testified on direct that her statements were spoken a different points of time, not consecutively the way they sound on paper.  During cross my co-counsel, who is brilliant, sat down after the accused testified, “Look!  I didn’t beat her and I didn’t drug her, so I didn’t rape her!”  Still, he was acquitted after two hours of deliberation.  Of course, my panel had not undergone the annual brainwashing each April the way they do now.

  8. Gov't Hack says:

    Okay, so admittedly my “name” for this post highlights my “filter” in evaluating this case, BUT SERIOUSLY:  “A picture is worth a thousand words” . . . so in lieu of PRECEDENT that a witness who reviews a videotape is incompetent to testify as an “adequate substitute” for the videotape at trial, the military judge and AFCCA resort to aphorisms?  How is this legitimate legal reasoning? 
     
    Leaving the relative WEAK merits of the underlying prosecution aside (and admittedly, a sexual assault prosecution for a non-consensual continuation of consensual sex immediately before is going to be a weak case w/ abundant fodder for “mistake of fact as to consent”), it still looks like the Accused gets a huge windfall here that RCM 703 did not require.  It looks more like AFCCA was reaching to dismiss a case that perhaps it too thought was substantively WEAK for the government, and adopted their opinion for that purpose.
     
    Addressing  the “adequate substitute” point, reading the facts of this case, it appears that the videotape observer AGREED with the accused’s rendition of what the hallway videotape evidence would reveal (Seton at 3) . . . so how is THAT not an adequate substitute for the video?  RCM 703(f)(2).  The Court points to some possible omissions in that testimony, like the observer fast forwarded through some of the video.  Well, any evidence that the fast forwarded portions of the video involved footage of the accused and/or alleged victim?  If not, how does that matter?  Seems like a pretty important fact to omit from your opinion.  Also, there’s Court’s assertion that it requires an investigator to be able to tell if someone is stumbling around drunk.  (Seton at 7)  Really?  So lay opinion for stumbling won’t do?  Seems pretty implausible.
     
    Moreover, why is it “reasonable” to dismiss the case WITH PREJUDICE instead of, for example require the government to enter into a stipulation of fact as to the contents of the videotape evidence, dictated by the Accused?  Or allow TSgt MS to testify but refuse to allow the government to cross-examine TSgt MS.  To put it another way, the videotape observer witness (TSgt MS) appears to have been able to testify about the video to provide all of the details that the accused wanted:  namely, that the accused and the alleged victim were seen wrestling and hugging in the dorm hallways some hours before the alleged sex assault.  Soooooo, if the witness is going to give the accused testimony of everything he wanted out of the video evidence, WHERE’S THE PREJUDICE???
     
    Also, AFCCA’s point about the video itself being indispensable for “impeachment” seems overblown.  The defense would have been fully empowered to cross examine the alleged VIC  based upon TSgt MS’s testimony at the Article 39(a).  What is more, the defense would then have the option of also calling TSgt MS to testify during their case in chief.  Tough to see how the defense loses the ability to challenge the alleged victim’s credibility when they still had every opportunity to cross her and then offer TSgt MS to testify later if they chose.   
     
    It’s just the precedent that this opinion sets that is a bit disturbing as to what an “adequate substitute” for video evidence would be.  On these facts, to find “no adequate substitute” is essentially to say that witness testimony can NEVER be an adequate substitute for video evidence, NOT EVEN WHEN THE TESTIMONY IS FAVORABLE TO THE ACCUSED.  How is that (1) accurate; or (2) sustainable?  Let’s take this out to its logical conclusion:  we should NEVER allow ANY witness testimony without videotape evidence to confirm it, because, after all . . . “A PICTURE IS WORTH A THOUSAND WORDS.”  On the upside, I guess that cuts down on a lot of those pesky prosecutions where all you have is eyewitness testimony.  (YES, I’m being sarcastic.)
     
    What’s even more perplexing is that AFCCA appeared to ignore United States v. Terry, and AFCCA decision on an Article 62 case involving the loss of videotape evidence.  AFCCA’s “easy distinction” of Terry (Seton at 7) is not very convincing—so because its video and not photos there can be no “adequate substitute.”  Because there is arguably SOME conceivable exculpatory value there can be no adequate substitute?  Where’s the citation of authority on that?
      
    Then there’s the more “esoteric”  matter of the standard of review in this case:   did anyone notice the deviation from the ordinary standard of review in this case?  AFCCA appears to be evaluating conclusions of law for “whether they are reasonable” (Seton at 4, 5 “reasonably determined A1C BB’s credibility . . .”; 7 “we find this position reasonable”),  NOT de novo.   Here’s how AFCCA lays it out:   ““When a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record.” Gore, 60 M.J. at 185 (quoting Burris, 21 M.J. at 144 ) (internal quotation marks omitted).”  Seton at 3. 
     
    Not to put too fine a point on it, the Court just flat out got the standard of review wrong for conclusions of law.  The Court misapplied the language from United States v. Gore cited above.  The Court in Gore was using that language in describing findings of fact—that’s why the Gore court used the word FINDINGS.  I know that for some this is “pointy headed appellate stuff,” but the standard of review is elemental—you screw that up and your whole analysis goes awry—like this case. 
     
    On Article 62s (and for that matter, Article 66 review) a military judge’s evidentiary rulings are reviewed for “an abuse of discretion.”  In conducting that abuse of discretion review, the military judge’s FINDINGS of FACT are sustained unless “clearly erroneous,” BUT, his CONCLUSIONS of LAW are supposed to be reviewed DE NOVO.  That is, the military judge receives no discretion as to the accuracy of his legal determinations because the military judge is not entitled to get the law wrong.  Necessarily, the application of the appropriate legal standard to the findings of fact is itself, a “conclusion of law” which AFCCA should have reviewed “de novo.”
     
    Instead, AFCCA appears to have muddied the waters and perhaps confused even itself in attempting to fashion some quasi-level of review to be more differential to the trial judge.  I’ve always thought that “abuse of discretion” is perhaps an unfortunate title for this type of review because the only thing that is getting any real deference are the military judge’s findings of fact.  Here, it looks like AFCCA is bound and determined to manufacture a standard to match the title of review, rather than the other way around.
     
    The only thing I can say is, “be careful what you wish for” for appellate defense counsel arguing future cases before AFCCA, because while this super discretion to the military judge in CONCLUSIONS of LAW works great for the defense in this Article 62 appeal, it won’t be so great in the 300 + or so cases a year under Article 66 where the Court is reviewing a military judge’s conclusions of law after a conviction. 
     

  9. Zeke says:

    The only thing I can say is, “be careful what you wish for” for appellate defense counsel arguing future cases before AFCCA, because while this super discretion to the military judge in CONCLUSIONS of LAW works great for the defense in this Article 62 appeal, it won’t be so great in the 300 + or so cases a year under Article 66 where the Court is reviewing a military judge’s conclusions of law after a conviction. 

    I don’t see much difference in the level of deference AFCCA gave to the trial judge’s pro-accused ruling in Seton as compared to the deference they regularly give to trial judge’s pro-government rulings the “300+ or so cases a year under Article 66” that get appealed.  I can’t imagine an appellate defense counsel who would not be intimately aware of the mountain that must be scaled to convince an appellate court that a trial judge abused their discretion.  One beauty of government interlocutory appeals is that it gives the prosecution the opportunity to stare up at the top of that mountain as well from time to time.

  10. Zeke says:

    Further, in Carrol v. United States, 354 US 394, 400 (1957) the Supreme Court makes a great argument for why the trial judge should be granted more deference when it is the government doing the appealing as opposed to on appeals by the accused.  Government appeals are supposed to be “unusual, exceptional, not favored.”  That only makes sense.  It is an absurdity that the government should get to pick its judges, particularly military judges who are not subject to any sort of democratic control, and then be able to second-guess them as well.

  11. stewie says:

    Yeah, I’m sure appellate defense counsel are wondering what days are being talked about where they saw the judicial deference rules work in their favor.

  12. Zachary D Spilman says:

    Zeke says:
    One beauty of government interlocutory appeals is that it gives the prosecution the opportunity to stare up at the top of that mountain as well from time to time.

    Ain’t that the truth. Take heed of these words Gov’t Hack. Those feelings of yours are called being the appellant. 

    Of course, the prosecution has to climb this mountain at every trial…

  13. Zeke says:

    Of course, the prosecution has to climb this mountain at every trial…

    Considering the small size of court-martial panels, the lack of a unanimity requirement, the inherent corrupting influence of rank and privilege contained in them, and the fact that the convening authority gets to stack the panel with members of acceptable “judicial temperament,” a military prosecutor’s hike up the trial “mountain” is more like being towed up the bunny slope.

  14. stewie says:

    Non SA case, sure…for a SA case, the conviction percentages still suggest a fairly high hill to climb.

  15. Zeke says:

    Non SA case, sure…for a SA case, the conviction percentages still suggest a fairly high hill to climb.

    The conviction percentages for SA cases merely reflect the extent to which prosecuting authorities in the military are willing to subject military accused to wholly frivolous charges… cases are taken to trial that cannot be won even with the deck stacked so heavily in the government’s favor.

  16. stewie says:

    So I take it you had a 100 percent conviction percentage as a TC then, given how easy it is.  (non SA cases only of course).

  17. Zeke says:

    So I take it you had a 100 percent conviction percentage as a TC then, given how easy it is…

     Of course not.  However, I would have lost a few more if I’d been required to convince a unanimous 12 member jury of the accused’s guilt.  

  18. AF JAG says:

    Zeke–Did I miss something?  I thought this thread started out talking about some Article 62 decisions and mistake of fact fact patterns for consensual sex turned non-consensual.  Now it appears that we’ve morphed this into take potshots at the military justice system, day?  NO MATTER–I’m happy to engage. 
     
    Let me start with sort of a “global observation”:  I’m more than a bit taken aback by your brazen attack on the integrity of convening authorities and court-martial members in the process: “the inherent corrupting influence of rank and influence in [courts-martial].”  I don’t know what officers you’ve served with, but the military officers I know take any oath they take seriously, be it to defend the Constitution of the United States or to serve as a court-martial member to accord the accused a fair hearing according to law.  With progressively higher levels of exasperation, I’ll address your criticisms in turn.
     
    STANDARD OF REVIEW:  CAAF has repeatedly held that the abuse of discretion standard is bi-furcated:  findings of fact received “clearly erroneous” review while conclusions of law are reviewed DE NOVO.  United States v. Michael, 66 M.J. 78, 81 (C.A.A.F. 2008) (when reviewing evidentiary rulings under Article 62, UCMJ, an appellate court applies an abuse of discretion standard; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect); United States v. Cossio, 64 M.J. 254, 256-57 (C.A.A.F. 2007) (application of law to facts is a legal determination reviewed DE NOVO). 
     
    Every lawyer knows the difference between facts and law (hopefully).  AFCCA appears to be needlessly muddling this standard of review by NOT applying de novo review to the law.  Rather, it is applying a “reasonableness” standard which ought only be applied to findings of fact, NOT LAW.  They are doing so based upon language from U.S. v. Baker (C.A.A.F. 2011), citing U.S. v. Gore (C.A.A.F. 2004) which said:  “When a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s FINDINGS, but whether those FINDINGS are ‘clearly supported by the record.’”  Gore, 70 M.J. at 287 (quoting United States v. Burris, 21 M.J. 140, 144 (C.M.A. 1985).
     
    HOWEVER, this is CHERRY PICKING language that unfortunately wholly distorts its meaning and the heretofore NON-CONTROVERSIAL concept that abuse of discretion review involves reviewing facts under a “clearly erroneous” standard and reviewing law DE NOVO.  Indeed, that Gore language was directly drawn from United States v.Burris (C.M.A. 1985), and the Court in Burris made CLEAR that when its said “FINDINGS” it was referring SOLELY to findings of fact, NOT conclusions of law:  “When a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are “fairly supported by the record.” [internal citation omitted}  ‘[T]o give due deference to the trial bench,’ a determination of fact ‘should not be disturbed unless it is unsupported by the evidence of record or was clearly erroneous.’”   Burris at 144 (emphasis added). 
     
    That’s why AFCCA’s inaccurate recitation and application of the standard of review is so frustrating:  because CAAF has repeatedly ruled, in Air Force Article 62 cases no less, that “abuse of discretion review” is BIFURCATED:  “Because this case came to the Court of Criminal Appeals by way of a Government appeal under Article 62, UCMJ, that court was limited to reviewing the military judge’s decision only with respect to matters of law. Article 62, UCMJ; R.C.M. 908(c)(2). The court was bound by the military judge’s findings of fact unless they were clearly erroneous and that court could not find its own facts or substitute its own interpretation of the facts [internal citation omitted]. This court reviews de novo the question of whether Cossio was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law and we are similarly bound by the facts as found by the military judge unless those facts are clearly erroneous.”  Cossio, 64 M.J. at 256.
     
    The military judge does not have discretion to get the law wrong, PERIOD.  The “abuse of discretion” standard allots the military judge significant discretion to make findings of fact because he is sitting at the fact finding level at trial.  However, it is not and has never been the law that the military judge has the discretion to get the law WRONG.  Whether something is “reasonable” is not the point, it’s whether his conclusions of law are CORRECT.  To the extent an appellate defense lawyer misunderstands that, no wonder he’s losing cases on appeal. 
     
    MEMBER SELECTION BY CA:  Your criticism presumes misconduct by the Convening Authority which you have no evidence of.  Riddle me this:  if the convening authority is hand picking “yes men” (and women) to deliver convictions and harsh sentences then why do we have so many acquittals and less than harsh sentences at sexual assault trials?  More to the point, any convening authority who purposefully engaged in or attempted to engage in influence over the members or selection of members with a pre-ordained verdict in mind would be guilty of UCI.  So the system is designed to defend against the misconduct you assert, without evidence, is some sort of epidemic.  I’m not fond of reckless attacks upon senior leaders.  Military caselaw is unfortunately populated by isolate instances of UCI, but to claim wholesale abuse by Convening Authorities of the member assignment process is unwarranted.
     
    Now then, would I nonetheless advocate that the Convening Authority be removed from the member selection process?  YES–but NOT because it is necessary to cure abuse in the system, but only because it is necessary to spare the system from unwarranted attacks based upon what members of the public (uneducated in the actual mechanics of member selection) might perceive as unfairness given the divergence from the civilian system.  In practice, convening authorities primary interest in picking members is to:  spread the impact of court-martial duty evenly amongst his units so that operations may continue with the least disruption possible.  His secondary consideration is then in picking a “cross section” of the members nominated for court-martial service , picking a “cross section” of members nominated by rank, gender, and ethnic background.  This is pretty remarkable considering that neither CAAF nor Article 25, nor RCM 503 impose this duty upon the convening authority.  Indeed, CAAF specifically held in United States v. Dowty, 60 M.J. 163, 169 (C.A.A.F. 2004) that a servicemember has no right to have a court-martial be a representative cross section of the community, or randomly chosen, rather, only to fair and impartial members.  I will qualify my observations above by stating that this is my experience in interacting with convening authorities on dozens of courts-martial referrals.  However, in talking to my other JAG colleagues, it appears that these considerations listed above are consistent with their lengthy years of experience with convening authorities as well. 
     
    SELCTION OF MILITARY JUDGES:  To quote from President Regan during his 1980 debate with then President Carter:  “There you go again . . .”  C’mon “Zeke”–you’re not SERIOUS about this one are you?  Please tell me no.  You are now questioning the integrity of EVERY military judge because they receive their assignments from their TJAG?   I’m curious, in your world do they also receive secret orders to thwart justice and manufacture wrongful convictions?  Who else is in on this vast conspiracy?  **SIGH**
     
    Once again, if you have issues about the fairness or integrity of a military judge, its called a recusal motion.  Giving your concerns voiced above I’m guessing you filed one in every one of your trial defense cases?  What’s that?  You didn’t?  Was it because you had no basis to question the integrity of that judge?  And he or she gave you no cause to question it during the course of the trial?  I thought as much.  This being the case, maybe it’s time to give the ad hominem attacks on the judiciary a well-deserved rest.
     
    Moreover, here’s a question for you–How would you have our judges selected?  By election?  By direct appointment of Congress?  By divine mandate?  Or maybe you would say, “no, I demand that civilian judges be hired to serve as military judges, like CAAF.”  OKAY, but aren’t those judges still selected, hired, and paid by the big, bad, due process smothering GOV’T?  So isn’t the government still “choosing its judges,” which, in your world, renders them forever compromised? 
     
    Oh, and by the way, the military is not the only jurisdiction that has judges appointed by the “government.”  ALL federal district, circuit, and Supreme Court judges are appointed by the “government”–not election or some alternate form of appointment.  Are all of these judges hopelessly compromised as well?  No doubt these federal civilian judges enjoy more independence because of lifetime tenure, but I reference this just to show that your argument that judges appointed by government officials are inherently less qualified, learned, or fair is SPECIOUS.
     
    UNANIMOUS JURIES:  Often missed by the defense bar is that fact that unanimous juries also function as a benefit for the accused.  Whereas in civilian jurisdictions a unanimous jury is required to convict OR acquit, the accused in a court-martial wins if less than 2/3 of the members vote to convict.  True, the prosecution wins with a 2/3 or more vote for guilty, but at the very least, non-unanimous verdicts cut both ways. 
     
    Furthermore, as the Supreme Court has held, there is nothing unconstitutional, even in the civilian system about a non-unanimous verdict in a non-capital case (Johnson v. Louisiana, 406 U.S. 356, 358 (1972); Apodaca v. Oregon, 406 U.S. 404, 411 (1972)  ) or a jury of less than 12 persons (Williams v. Florida, 399 U.S. 78,  102 (1970) (“The fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to affect the purposes of the jury system wholly without significance except to mystics” ) (citation omitted).  Admittedly, 48 states and the federal civilian criminal system require unanimous verdicts, but, there is nothing inherently unfair about a system which choses a different way, particularly when that “different way” is not designed to produce injustice.
     
    There is a legitimate reason for non-unanimous verdicts:  military efficiency and mission accomplishment.  Non-unanimous verdicts ensure that there will always be a final result from a court-martial, thus allowing all court-martial members to return to their primary duties and mission.  For while the purpose of the military justice system is to provide justice and enforce good order and discipline; the purpose of the United States military is not merely to adjudicate courts-martial.  In this light, non-unanimous juries are not a “deficiency” in the system, they are a reality wrought of a DIFFERENT SYSTEM. 
     
    Finally, I’d ask you to consider that as you criticize the military justice system from what I presume is your current trial or appellate defense billet, that it is our own seemingly “corrupt,” “inept,” and “unfair,” system that permits you to do so.  Equipped as you are with equal or greater facilities than the government (at least in the AF where AFI 51-201, para. 13.25.3 requires it); FREE expert assistance in every case where you can show “necessity”; and most importantly, perhaps the most well-funded and well-staffed “public defenders” office equivalent in the nation, with a client load most  civilian PD’s would envy as it permits far superior preparation time for your cases.  
     
    I’ll close by saying that everyone acknowledges that the military justice system is not perfect.  Of course not–no system is.  I also appreciate that a good defense counsel should advocate zealously for his client.  OF COURSE.  And sometimes that includes pointing out procedural deficiencies in the system that yield what you perceive to be unfairness, OF COURSE.  I guess what I’m asking is that next time you saddle up to advocate zealously for your client (as you should) that you do so with facts, not fiction.  That includes being a bit more careful before making categorical attacks upon the integrity and competency of judges and court-martial members whom you have no knowledge of. 
     
     
     

  19. Zachary D Spilman says:

    AF JAG-

    On the unanimity issue, check out this post and this post

  20. Zeke says:

    AF JAG – I do appreciate the thought you put into your posts.  Sorry this thread went off-topic.  Discussions have a way of doing that around me.

     I don’t know what officers you’ve served with, but the military officers I know take any oath they take seriously, be it to defend the Constitution of the United States or to serve as a court-martial member to accord the accused a fair hearing according to law.  

    I hope that you understand it is my oath to defend the Constitution that gives me doubt as to the propriety of having any fellow citizen’s guilt decided by a panel of jurors chosen from a population with a strict hierarchy and a culture that demands obedience to those in a position of superiority.  Aside from that, my anecdotal experience is not unlike yours.  I first began military service 16 years ago, left service for civilian pursuits, and returned precisely because of the quality of character I found to be nearly-uniform in the individuals wearing a uniform.  That being said, my personal experience has done little to blunt my belief that the opinions of an O-6 or an E-9 in the deliberation room is afforded deference by subordinates and that such is antithetical to the “jury-like” process our Founders envisioned for every accused person.

    AFCCA appears to be needlessly muddling this standard of review by NOT applying de novo review to the law.  Rather, it is applying a “reasonableness” standard which ought only be applied to findings of fact, NOT LAW. 

    I disagree that AFCCA performed anything but a de novo review of the military judge’s findings (recitation) of the law.  What I suspect we might disagree on is what standard AFCCA applied in reviewing the military judge’s application of that law to fact.

     
    More to the point, any convening authority who purposefully engaged in or attempted to engage in influence over the members or selection of members with a pre-ordained verdict in mind would be guilty of UCI.  So the system is designed to defend against the misconduct you assert, without evidence, is some sort of epidemic. 

    I’ve served convening authorities of exceptional integrity who chose members based on their capacity to be fair.  Additionally, I’ve noticed a positive change in the sort of messaging coming out of the SAPR program.  It’s much more neutral and geared towards providing alleged victims with immediate care and emotional support – which is awesome.  But, initially, the messaging included slogans like “choose to believe” and a focus on “accountability” for offenders.  I think that sort of messaging from command was intended to “change the culture,” which is admirable.  (The military culture has many of the same anti-women, pro-intoxication, inclinations as our civilian counterparts, and that should be addressed.)  But, command has, in my view, in the past sought to change the culture in a way that undermines the presumption of innocence we expect of potential court-martial members.  If a civilian DA’s office were to start trying to similarly “educate” its pool of potential jurors, I would have similar concerns.  It is that sort of corrupting influence, along with the inevitable corrupting influence of rank on a panel of members who have been conditioned through years of service to behave as a subordinate, which concerns me.

     The military is not the only jurisdiction that has judges appointed by the “government.”  ALL federal district, circuit, and Supreme Court judges are appointed by the “government”–not election or some alternate form of appointment.

    All  federal judges, other than military judges, are appointed by an elected official, confirmed by an elected body, and are removable by the people’s representatives through impeachment.  In contrast, Article 26, UCMJ, and RCM 503 places the assignment of military judges within the discretion of a wholly un-elected individual, TJAG.  Further, “impeachment” of a military judge is similarly the province of TJAG.  RCM 109.  Military judges are wholly immune from any sort of democratic control.  Military judges, no matter how noble they are (and I agree that I’ve seldom met one that I didn’t admire), do not enjoy the will of the people, even the slight mandate that might be obtained by having been appointed by an elected representative.  It is no offense to say as much; nor is it an ad hominem attack.  It is only the truth.  I think U.S. citizens, even those in uniform, should have their cases presided over by judges accountable to the people.  I understand others may disagree.

    True, the prosecution wins with a 2/3 or more vote for guilty, but at the very least, non-unanimous verdicts cut both ways. 

    True.  I have no doubt I would have won fewer acquittals as a trial defense counsel if unanimity had been required.  That being said, those cases would have result in a hung jury, which bears precious little substantive difference to a client.  Not going to jail is not going to jail.  Not having a conviction is not having a conviction.  The terminology attached the government’s failure of proof is interesting, but not terribly relevant.

    the Supreme Court has held, there is nothing unconstitutional, even in the civilian system about a non-unanimous verdict in a non-capital case (Johnson v. Louisiana, 406 U.S. 356, 358 (1972); Apodaca v. Oregon, 406 U.S. 404, 411 (1972)  ) or a jury of less than 12 persons (Williams v. Florida, 399 U.S. 78,  102 (1970) (“The fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to affect the purposes of the jury system wholly without significance except to mystics” ) (citation omitted).  

    You conveniently omitted reference to the Supreme Court’s more recent decisions in Ballew v. Georgia, 435 US 223 (1978) and Burch v. Louisiana, 441 US 130 (1979).  Those cases make clear:  A jury as small as 6 members is constitutionally permissible, but only if it also required to be unanimous.  A panel smaller than 6 is constitutionally offensive regardless.  Further, the Supreme Court expressly rejected your argument that expediency could justify diverging from Ballew and Burch.  Simply, courts-martial with fewer than 6 members are unconstitutionally unreliable under the Fifth Amendment.  It’s an absurdity that our jurisdiction has yet to recognize that.

    Finally, I’d ask you to consider that as you criticize the military justice system from what I presume is your current trial or appellate defense billet, that it is our own seemingly “corrupt,” “inept,” and “unfair,” system that permits you to do so.  Equipped as you are with equal or greater facilities than the government (at least in the AF where AFI 51-201, para. 13.25.3 requires it); FREE expert assistance in every case where you can show “necessity”; and most importantly, perhaps the most well-funded and well-staffed “public defenders” office equivalent in the nation, with a client load most  civilian PD’s would envy as it permits far superior preparation time for your cases.  

    I acknowledge the favorable working conditions I enjoy.  I don’t think that relieves relieve me of my obligation as an officer and a lawyer to oppose what I truly believe is an denial of essential liberty to an entire class of citizens without a compelling necessity to justify it.  Nobody is obligated to concur with me, and I understand that others might not be inclined to fight the windmill alongside me.  But, I hope nobody would question the authenticity of my belief or that, in my way, I seek justice the same as the officers I have been privileged to serve alongside in government and defense billets alike.
    Indeed, if it weren’t for the character of the men and women I have served with, I don’t think I could stomach working within a system that I believe is so structurally flawed.  

  21. stewie says:

    “denial of essential liberty to an entire class of citizens” is a broad overstatement.  Some valid critiques, sure.  But nothing listed is a denial of essential liberty.

  22. Zeke says:

    “denial of essential liberty to an entire class of citizens” is a broad overstatement.  Some valid critiques, sure.  But nothing listed is a denial of essential liberty.

    I view being subjected to a heightened risk of criminal conviction and incarceration due to deficient due process as being a denial of essential liberty.  Specifically, I think Ballew v. Georgia, 435 US 223 (1978) and Burch v. Louisiana, 441 US 130 (1979) show that our court-martial system offends the Fifth Amendment’s guarantee of due process of law because military members are routinely tried by panels with too few members to conduct reliable fact-finding, with that unreliability being further amplified by the lack of a unanimity requirement.