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.

I’m reminded of something I referenced in my argument preview of United States v. Solomon, No. 13-0025/MC, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page):

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).

So true.

20 Responses to “Government fails to stop deposition of teenaged alleged victim of rape”

  1. RKincaid3 says:

    I can’t help but wonder why the Government wants to stop this deposition. What could the Government possibly have to lose? 

     
    I suspect that the answer to that is simply this: it is losing on legal (constitutional) grounds the statutory-enacted argument that an alleged sex assault victim can allege that a crime has been committed and then be protected from all manner of scrutiny in determining the truth of the allegation.  These statutory changes, foisted by Congress on the military, are not part of a justice process, but are oppressive, paternalistic and protective of sex assault victims to the point that mere accusation is conviction.
     
    It appears to me that the court’s statement, quoted below, merely recognizes that the statutory schemes pushed by Congress to insulate alleged rape victims from the rigors of judicial scrutiny (of their claim that they have been a crime victim) is inevitably going to run into severe constitutional issues.
     

    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. 

     
     
    All the proposed statutory changes do is delay the required confrontation from occurring at the Art 32 hearing to occurring via a deposition or at trial—confrontation is unavoidable.  Even subsequent statutory tinkering by congress to remedy this inevitability will run smack dab into an accused’s constitutional right like confrontation and equal access to evidence—as it should.
     
    How come Congress has been so indifferent to due process?  Why are we seeing such a whole-sale assault upon due process rights?  How are any of these changes making it through Congress at all? Simple–because Congress is so out of touch, generally, with the military and the people who serve within it, that it can jump on a political hot button issue, run with it, and toy with the lives of those who serve without much concern for repercussion at the polls. 
     
    Shame on you, Congress!

  2. Lieber says:

    RKincaid3,
    The confrontation clause doesn’t guarantee multiple occasions to cross a witness.

  3. DCGoneGalt says:

    Understood that there is no Constitutional requirement for multiple confrontations.  However, due to the Dec 14 changes to Art 32s and with CDI/OSI/NCIS (let’s be honest) prohibited from doing confrontational interviews or digging into the background and/or motivation to fabricate with complainants, does anyone foresee defense counsel requests to the convening authority to appoint confidential investigators?  Because the defense will now likely be effectively unable to interview a complainant and, with the increase in Art 120 caseload, so inundated with cases that their pre-trial investigations/preparation will likely suffer. 
     
    I would like to think that a convening authority, most of them anyway, would recognize that basic fairness requires allowing the defense to fully investigate these cases since the official government investigation activity involving a complainant mostly involves investigators performing stenography while the complainant recites the allegation and then JA/CC inquiries to the Complainants Counsel of what the complainants feelings of the case are. 

  4. Phil Cave says:

    Sixth Amendment confrontation doesn’t apply at a 32.  Fifth Amendment Due Process would.

  5. Tami says:

    This might not have been an issue at all if she had chosen not to testify at the Article 32 hearing to begin with.  If there was no testimony from the 32, she said she would be available for trial, and the defense has had a large amount of time to interview, I think the MJ would’ve denied the request, as there’s no “good cause” for a deposition under those circumstances.

  6. DCGoneGalt says:

    Tami:  The problem is that regardless of the hypotherical pre-trial time to interview, there is no opportunity to interview.  Defense can request an interview but is dependent on the Government to subpoena to a deposition for a civilian or a finding of availability by an Art 32 IO for a military witness. 

  7. Javert says:

    Lieber is right.  The Constitution doesn’t guarantee confrontation at any point other than trial.  Military practice encourages pretrial interviews and pretrial sworn testimony, but that isnt uniform in civilian practice.  One of my reservist colleagues who practices as a DA in his civilian life noted that both he and the judge would laugh if a Defense attorney complained a witness wouldnt talk to them before trial.
    @Phil Cave, how does the 5th Amendment Due Process guarantee the right to confront one’s accuser at a 32? 

  8. SFC V says:

    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).

     
    As long as what the DC is covering in the deposition hasn’t previously been covered in the 3 hour interview or 2 hour cross examination I can buy this.  However, it strikes me as a little unbelievable that in 5 hours his DC was unable to adequately cover all that was desirable in preparation for trial.  
     
     

  9. Phil Cave says:

    Javert,
    1.  Once again I am saddened about how civilian practice and practitioners (and judges) are unable to find ways to make a trial fairer.  While we have problems in the military, there are many aspects of our practice that ought to be taken up by the civilians, somewhat like Wolf v. Colorado.  “It’s worse out there” is not a pleasant or compelling argument (unless you are a Congressperson).
    2.  Sorry I was unclear.  The Fifth doesn’t compel confrontation.  What I meant to be saying is that the statute and rules require certain degrees of access – rights – under R.C.M. 405, to compel the attendance of witnesses.  Execution and enforcement falls under the Fifth in my mind.  So there is a limited right of “confrontation,” soon to be done away with.  

  10. Dew_Process says:

    What I find offensive – no, truly offensive – is the CCA’s comment:
     

    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.
     

    What experience? What judgment? With due respect to the CCA judges, few have any great or extensive experience in the art of defense cross-examination.  Consider the factual foundation – the allegation purportedly happens in March of 2012, and charges are not preferred until August 2013 – 17 months after-the-fact (if there is a fact!).  As someone who frequently teaches defense trial techniques at CLE’s, I found the reference to “shoes” [Slip Opn. at 3] to be interesting since the “blue shoes” example is a classic training device (assuming relevancy):
    Q:   At the time of the incident, you were wearing blue shoes, correct?
    A:   I don’t remember.
    Q:   You do own a pair of blue shoes, correct?
    A:   Yes.
    Q:   Is you lack of memory about the color of the shoes, due to the fact that you once knew the color of the shoes you were wearing that evening, but now, no longer remember?
    A:   I don’t know.
    Q:   Well, if you still don’t know, is your lack of knowledge based upon the fact that you never paid any attention to what shoes you put on before going out that evening, and thus – memory or not – you simply never observed the color of those shoes?
    ______________________________
     
    Now, for a witness who repeatedly responds with “I don’t know,” or “I don’t remember” answers, effective cross-examination is going to take a long time.  Perhaps the “shoe” example originated with Roy Black’s cross-examination of the “friend” of the Accuser in the William Kennedy Smith trial some years back.  The relevant parts of his cross-examination are in three parts and graphically demonstrate one of the problems that the prosecution had in that case.
    http://www.royblack.com/blog/cross-examination-under-control/
     
    Obtaining justice, i.e., a fair and just result, should not depend upon time.  If time becomes a factor, justice is not the goal.  A number of States already allow pre-trial depositions of witnesses in criminal trials – simply to get around the fact that many government witnesses refuse/decline (for whatever reasons) to be interviewed prior to trial by the defense, and defense preparation by competent counsel is a necessity, not a luxury.
     
    Just my 2 cents!

  11. Tami says:

    But now with the “FETI technique,” she will be conditioned to respond “My lack of memory about the color of the shoes is because I was paying more attention to your client shoving his penis inside me while he had me pinned than the color of the shoes.  The color of the shoes had nothing to do with your client raping me.”
     
    FETI stands for Forensic Experiential Trauma Interview.   http://usnews.nbcnews.com/_news/2013/03/21/17375404-training-aims-to-improve-how-military-sexual-assaults-are-investigated?lite

  12. stewie says:

    FETI (I feel like eating cheese all of a sudden) is certainly a clever way of masking inaccuracy/issues with the testimony of alleged victims.
     
    It will be interesting to see how much depos increase in volume once the new Art 32 comes into play.  Were I ever a MJ, I certainly would be favorably disposed to ordering them although I’d expect the defense to ask to interview and be declined before doing so.
    As Dew_Process says, it really serves no one to triple the amount of time the alleged victim is on the stand simply because of no prior interview and thus the DC has to do all the work in court, somewhat on-the-fly.

  13. phil cave says:

    Hilarious, he takes the cognitive interview and conversation management approach, gives it a different name, and gets accolades.

  14. Dew_Process says:

    @Tami – 2 things: (1) the “shoes” referred to the shoes that the complainant was wearing, not the accused. (2) I am waiting to see a bona fide  Daubert challenge to CID’s “FETI” approach – it should be interesting to say the least.  Don’t get me wrong, I am not making light of those actually abused here, just Mr. Strand’s FETI “concept.”
     
    http://www.army.mil/article/72055/
     
    The proponent of FETI is a retired CID agent – it does not appear that he has any degrees in any area of mental health, and from reading the squibs that the Army is publicizing, FETI appears to be nothing more than a resurrection of the old “repressed memory” theory added to sexual assault investigations.  Show me some peer-reviewed, social science literature validating FETI and I’ll reconsider my position.

  15. Tami says:

    Dew Process,
     
    Don’t underestimate this, I have seen Mr. Strand give this presentation, and he can come across as pretty reasonable about this with an explanation about the “trauma memory” process that makes sense, without using bogus words like “victimology.”  He hates questions like “do you feel you were raped,” because he recognizes the crime isn’t about “feelings,” it’s about who did, or didn’t do, what, and who said, or didn’t say, what. 
     
    FETI is used to explain why the alleged victim doesn’t remember insignificant details like, what color of shoes was she wearing at the time of the alleged attack.  If a defense attorney were to keep attacking the alleged victim on these types of things, they risk alienating the panel or judge.  The defense would be smart to avoid nit-picking these kinds of details and focus more on the bigger discrepancies, like a wall v. door.
     
    FETI can also be used by defense attorneys, especially in cases where the client has committed a crime in a “drunk but looked and acted like he was sober” state of mind.  It’s useful to explain why the client remembers only bits and pieces of what happened.
     
    Anecdotally, I’ve used this approach on cross-exam in several rape cases.  In one rape case, we exposed the rape allegation for what it was, because by showing empathy, we were able to expose the TRUTH of why she alleged rape, and we got a Chapter 10 w/ general discharge.  There was still an inappropriate relationship charge, and an unforgiving MJ and panel, hence the Chapter 10.  How sad that in the future, the purpose of the Article 32 hearing will change so that the TRUTH of the allegation is irrelevant.  Thanks Congress.
     
    3 hours of interviewing and 2 hours of cross without getting to the heart of the allegation seems a little excessive in my mind, and I’m a defense attorney at heart.  I hope the defense gets to the heart of the matter quickly in the deposition.
     
    I agree w/ everything else you say, and I’ll leave it at that.

  16. phil cave says:

    Which is why I’m more inclined to think that Strand has repackaged CI, CMA, and PEACE interviewing rather than created something new.  I do think care must be exercised that we are not repackaging FMS though.  Which is why I LOL when he gets accolades for doing what the British have been doing since 1983, and several other European countries.

  17. phil cave says:

    I’m not here to teach prosecutors.  But let me say it this way, consistent with what Tami says (I think).
    I have been using CMA for years.  And how I interview witnesses today is a lot different to how I was first  interviewing witnesses and suspects in 1968 as a police officer.  
    Every defense counsel should learn interview and interrogation skills.  Not just to cross-examine the lying agent, or the duplicitous agent, or the incompetent agent, or as Tami points out the CW, but to do their own case work.
    Like Tami I have benefited from how I approach CW’s and police officers.  It is not uncommon for me to have been the first to tell them what’s going on and why.  (Although that may change with the SVC program – still to be determined, because I have met several SVC’s who don’t know what’s going on.)  Interviews need not be adversarial, and I would suggest an adversarial or directed interview is a wrong approach.  If nothing else it closes the interviewee down at a time when open listening is required.
    CMA was actually developed as a way to address and combat the issues of the the Reid Technique and the possibility it leads to more false confessions than other methods.  Reid will tell you different – fine.
    I recommend two other books on the shelf side by side with Criminal Interrogations & Confessions (Reid).
    Memory Enhancing Techniques for Investigative Interviewing, by Fisher & Geiselman
    Investigative Interviewing: The Conversation Management Approach, by Shepard & Griffiths.
    And as young counsel who have worked with me know, figure out yourself first, then take and adapt the best of the materials and resources to improve.  To paraphrase Gunny Hightower, adapt and overcome,you can even practice with an empty chair.

  18. Tami says:

    Phil,
     
    You’re spot on, as to the point I was making and I suspect the “reinvention” of already existing techniques.
     
    The Reid technique is overrated, and frankly, who cares what “technique” is being used?  I discovered, as I grew as a defense attorney, that treating the CW in a non-confrontational way got me a lot of info I wouldn’t have otherwise gotten.  And the CW couldn’t complain about the way she was treated, so if she resisted further interviews, it was much more likely the MJ would tell the TC to “encourage” the CW to talk to me.
     
    The details of the “rape” case was that she was “too drunk” to consent.  Article 32 hearing revealed that the night of the incident, she was despondent over discovering she wasn’t legally married to her abusive “husband” (thus the adultery charge also went away), she was missing her daughter, her father was dying, it was her birthday but her boyfriend didn’t want to go out celebrating with her, so she went out with friends and caught her boyfriend dancing with some hoochie-mama at one of the clubs, returned to the barracks drunnk (but not blacked-out drunk), the client went to check on her, kissed her on the forehead, then as he was getting up to leave, she grabbed his arm and begged him not to leave, one thing led to another, they had sex, he folded up her clothes on a chair and left.  She talked w/ boyfriend next day, he apologized, and client was subsequently accused of rape.
     
    After going through all of these details, I ended cross exam with “after everything you’ve been through, I totally understand why you didn’t want to be alone that night,” and pointing out to the IO that rapists don’t generally fold up the “victim’s” clothes afterwards.  End of Government’s case.

  19. RKincaid3 says:

    Outstanding discussion thread! I love the passion for this issue! And contrary to the thoughts by some, my point was not about having multiple opportunities to confront the complaining witness–it is aboutshameful congressional efforts to reduce the meaningful effectiveness of confrontation–whenever it occurs.
     
    The legislative changes being pushed, and the latest investigation techniques (which prevent law enforcement from conducting a thorough investigation into the claims and the credibility of those claims) are all designed to either reduce the defense counsel’s effectiveness on cross-examination–which the SCOTUS has called the “single greatest engine” for getting at the truth–by leaving defense counsel more unprepared (due to a lack of access to/cooperation by the alleged victim) than previously required–and/or insulate that victim from the scrutiny that is the unavoidable due process consequences of making an allegation against one who is, under law, innocent until proven guilty.
     
    These changes are simply the manifestation of the following fact: who wants to defend the rights, constitutional or otherwise, of an accused rapist? Not Congress, obviously. And therein lays what has always been the biggest threat to liberty in any society–it is too easy to tolerate, justify and accept what society does to the worst among us.  Remember Rev. Martin Niemöller’s historic quote?
     
    This debate is important simply because the historical problem is this: without this discussion, it is only just a matter of time before those who are “just fine” with what society does to the worst among us suddenly finds that the definition of who is the worst among us now includes them–when they are now the vile, disgusting and/or unpopular defendants.  Then and only then does the subjective holier-than-thou attitude towards the misdeeds of others fail to provide comfort or be acceptable.
     
    So, thanks for the discussion.  I have enjoyed it.

  20. Zeke says:

    @RK – 
    Your last paragraph reminded me of this Mencken quote:

    The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

    I have repeatedly been reminded of this quote as I think about the “reforms” our system is suffering in the government’s blind rush to punish sex offenders and vindicate their victims.