One of the most basic skills for a trial lawyer is giving verbal descriptions of in-court actions as they occur, and having a witness mark exhibits when pointing at them, because the microphones that are recording the proceedings for the record can’t see what’s happening in the room.
But over the past few months we’ve seen a rash of appellate opinions that address trial-stage failures at the most basic level. Adding to the list is a recent opinion of the Army CCA in United States v. Wada, No 20120457 (A.Ct.Crim.App. Feb. 28, 2014) (link to slip op.).
Private Wada was tried by a general court-martial composed of members with enlisted representation. He pleaded guilty to numerous offenses, including willfully disobeying a superior commissioned officer, willfully disobeying a non-commissioned officer, resisting apprehension, assault consummated by a battery, and wrongfully communicating a threat. However, he pleaded not guilty to a charge of aggravated assault with a means likely to cause death or grievous bodily harm, and the Government elected to proceed to trial on that charge.
The charge alleged that the appellant dragged and struck the victim with an SUV.
The government case regarding this charge consisted of one witness, SGT JW, who testified using Prosecution Exhibit 1, an aerial photograph of the scene. During his testimony, SGT JW repeatedly referred to Prosecution Exhibit 1, but no markings were placed on the exhibit to memorialize his testimony nor does the exhibit contain a legend identifying the places described.
Slip op. at 2. The Defense called two witnesses who contradicted SGT JW’s testimony. One was a Specialist who was standing nearby and watched the incident. “From his vantage point, it did not look like the vehicle struck the [victim].” Slip op. at 3. The other witness was the victim. She testified that “she was not struck by the SUV; she was not injured in any way by the SUV; she was wearing slippers at the time; and her feet never dragged across the ground.” Slip op. at 3. But on cross-examination the Government impeached the victim’s credibility with the fact that she was the appellant’s dependent and he provided her with financial support. The panel convicted the appellant of the offense.
The CCA reverses for factual insufficiency:
We have weighed the evidence, making allowances for not personally observing the witnesses. Because Prosecution Exhibit 1 contains no legends or markings, we cannot identify most of the areas described by SGT JW or SPC KC, and that is important to our determination regarding whether we can find beyond a reasonable doubt that the SUV actually struck TW. Sergeant JW’s testimony, standing alone, contradicted by the testimony of TW and SPC KC in the absence of any evidence of injury to TW, is not sufficient to prove to us beyond a reasonable doubt that TW was struck by the SUV. Therefore, after a thorough review of the record, we find the evidence factually insufficient to support appellant’s conviction of aggravated assault.
Slip op. at 4 (emphasis added). Now this wasn’t the strongest case for the Prosecution. After all, its single eyewitness was contradicted by a Defense eyewitness and by the victim. But the CCA’s decision explicitly acknowledges the impossibility of recreating the critical testimony of SGT JW, because the exhibit that SGT JW used while he testified was not annotated.
Coincidentally, the events at issue occurred in December 2011. That’s the same month that I criticized the way the military conducts legal training in a post titled: Where are the teachers?