Air Force JAG files a certificate of review of the AFCCA’s denial of a Government effort to stop a deposition of an alleged victim of rape
CAAF’s docket for Friday shows the following certification:
No. 14-5005/AF. U.S., Appellant v. Lieutenant Colonel Todd E. MCDOWELL, Appellee and Senior Airman Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED THE UNITED STATES’ PETITION FOR EXTRAORDINARY RELIEF AND FOUND THE MILITARY JUDGE’S RULINGS DID NOT CONSTITUTE A JUDICIAL USURPATION OF POWER AND WERE NOT CHARACTERISTIC OF AN ERRONEOUS PRACTICE WHICH IS LIKELY TO RECUR.
WHETHER THIS HONORABLE COURT SHOULD ORDER THE MILITARY JUDGE TO REVERSE HIS DECISIONS TO ORDER AN ORAL DEPOSITION OF B.B. AND TO RE-OPEN THE ARTICLE 32 PRETRIAL INVESTIGATION.
The military judge granted a Defense motion to depose the alleged victim after the victim did not complete her testimony at the Article 32 pretrial investigation (she walked out after two hours of cross examination, having been interviewed by defense counsel for three hours the day before). The Government sought a writ of mandamus ordering the military judge to reverse himself. The AFCCA denied the Government’s petition in this order.
I discussed the AFCCA’s ruling in this post, where I wrote:
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).
This case is the ninth certification from the Air Force on CAAF’s docket this term (I listed the other eight at the bottom of this post).
It’s beginning to look like the Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.