In an order issued last week in United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, Misc. Dkt. No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014) (link to order), the Air Force Court of Criminal Appeals denies a Government effort to stop a deposition of an alleged victim of rape. The deposition was ordered by the military judge after the victim did not complete her testimony at the Article 32 pretrial investigation.
The accused is charged with forcible rape of the then 16-year-old girl (identified only as “BB”) in March 2012. BB was a family friend and the accused was going to drive her to a martial arts class they attended together. He went to her house and, allegedly:
[The accused] pinned her against a door or wall with his body weight, pulled down her loose-fitting pants and underwear, pulled down his own pants and inserted his penis into her vagina for about 30 to 60 seconds. She reported that she did not physically resist the accused’s actions because she “froze,” having assumed the appellant would never do something like this. Several months later, after reporting the incident to her boyfriend, her martial arts instructor, and her mother, BB filed a report with law enforcement authorities.
Order at 1-2. Charges were preferred in August 2013 and an Article 32 pretrial investigation was conducted in September 2013. The day before the investigation, the defense counsel (otherwise unidentified) interviewed BB. “After three hours of answering questions from trial defense counsel, BB and her mother ended the interview, noting the hour was late and BB had to meet with trial counsel and ready herself for the hearing the next day.” Order at 2.
During the Article 32 hearing the next day, the investigating officer allowed the defense counsel to ask BB “a number of probing questions on issues not immediately related to the charged act itself.” Order at 2. “Cross-examination took place for a total of more than two hours.” Order at 3. Eventually, informed that she was free to leave whenever she liked, BB simply stopped testifying and left the hearing.
The case was referred for trial by court-martial, and the Defense moved to order a deposition of BB and to either dismiss the charge or reopen the Article 32 pretrial investigation. Over the Government’s opposition:
The military judge granted both defense motions, at least in part. Although he noted that BB had indicated she would be available for trial, he ordered that BB be deposed because she “provided incomplete testimony” at the Article 32 hearing that “denied the accused of a substantial pretrial statutory right: a full opportunity to cross-examine an available witness at the Article 32 hearing.” He concluded that “[d]ue to the exceptional circumstances of this case, it is in the interest of justice that the testimony of [BB] be taken and preserved.” The military judge also ordered the convening authority to re-open the Article 32 hearing so the IO could consider BB’s deposition, and that new pretrial advice under Article 34, UCMJ, be accomplished thereafter.
Order at 4. These rulings were made on November 21, 2013. The Government filed its petition 16 days later. The defense responded, and the alleged victim (presumably represented by Special Victims Counsel) filed two amicus briefs.
The AFCCA’s order begins by considering the appropriateness of a writ of mandamus, noting that it is “a drastic remedy to be used sparingly.” Order at 5. (quoting Morgan v. Mahoney, 50 M.J. 633, 634 (A.F. Ct. Crim. App. 1999) (citing Will v. United States, 389 U.S. 90, 95 (1967))). The court also states the three conditions required for a writ:
(1) the party seeking the writ must have “no other adequate means to attain the relief”; (2) the party seeking the relief must show that the “right to issuance of the relief is clear and indisputable”; and (3) “even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.”
Order at 5 (quoting Cheney v. United States Dist. Court, 542 U.S. 367, 380-81 (2004)). It notes that, “To justify reversal of a discretionary decision by mandamus, we must be satisfied that the decision amounted to a judicial usurpation of power or be characteristic of an erroneous practice which is likely to recur.” Order at 5 (marks and citations omitted).
Applying this law to the facts of this case, the AFCCA finds that while it is appropriate to consider the petition, the circumstances of the case are that “the military judge decided an issue the parties properly placed before him, and he elected a lawful option in response to the motions.” Order at 6. The court therefore finds no judicial usurpation of power, nor does it see the rulings as characteristic of an erroneous practice which is likely to recur. Accordingly, the Air Force court will not disturb the military judge’s rulings.
But the court does voice some practical concerns:
We acknowledge that our collective experience and judgment causes us to view the military judge’s ruling with caution. The accused had the benefit of more than five hours with BB: three hours during the defense interview and more than two hours of cross-examination during the Article 32 hearing. If it could not cover this relatively straight-forward accusation during that time, then perhaps defense counsel should not be entitled to another unlimited block of time in which to question BB during a deposition. Military judges and investigating officers should ensure their rulings and actions do not generate an incentive for defense counsel to create a situation that renders a witness unavailable at an Article 32 hearing. Also, BB was available to testify at trial. Assuming without deciding that the defense was entitled to interview her again before trial, there is no proof she would not have submitted to another defense interview as trial approached (though she apparently did not respond to defense attempts to contact her after referral). The military judge’s ruling also indicates discomfort with the fact that the IO only notified BB of her right to leave after the Government completed its direct examination. However, the record indicates the IO took this course of action because BB’s discomfort did not become apparent until after cross-examination began, and counsel for both sides agreed with the IO’s proposal to so advise her.
Despite these issues with the military judge’s ruling, this matter represents a case-specific situation, not a widespread situation likely to recur. We know of no other instance in which a military judge has ordered a deposition under similar facts such as the instant case, and the parties and amicus briefs have pointed us to none. In most cases of this type, defense counsel are able to adequately prepare for trial without the need for a court-ordered deposition. In addition, we note that the Article 32 process will soon be more limited in scope, with explicit statutory language that the victim may not be required to testify at the preliminary hearing. Defense counsel may or may not have greater occasion to request depositions of alleged victims after this legislation takes effect, but such requests will be based on different factual predicates than the situation in this case.
Order at 7-8 (emphasis added).
I can’t help but wonder why the Government wants to stop this deposition. What could the Government possibly have to lose? While the defense counsel’s five hours of interview and examination of the alleged victim certainly seems like it would be enough, there’s no indication that the defense was abusing the process just to harass the victim (besides the ethical issues that would raise, I’d suspect the 32 IO would have put a stop to any of that). And the deposition officer (something I’ve been before) will exercise reasonable control over the proceeding.
In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: “The United States wins its point whenever justice is done its citizens in the courts.”
Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).