CAAF will hear oral argument in the Coast Guard case of United States v. Leahr, 14-0265/CG (CAAFlog case page), on Wednesday, May 14, 2013. The court will consider a diverse set of issues involving Appellant’s regulatory right to a speedy trial under Rule for Courts-Martial (R.C.M.) 707, the Government’s ability to withdraw charges post-arraignment, and whether the trial military judge should have recused himself:
I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.
II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.
III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”
Appellant was convicted contrary to his pleas of not guilty, by general court-martial composed of members with enlisted representation, of one specification of larceny, four specifications of assault consummated by a battery, and two specifications of wrongfully communicating a threat, in violation of Articles 121, 128, and 134. He was acquitted of additional allegations of assault, as well as of burglary and kidnapping. The members sentenced him to confinement for three months, reduction to E-1, and a bad-conduct discharge.
One of the acquittals was for an alleged assault of another Coast Guard member, Avionics Electrical Technician 3rd Class (AET3) LS. The allegation involving AET3 LS wasn’t discovered by the Government until after the Article 32 investigation was complete and Appellant was arraigned on the other charges. The allegation was otherwise unrelated to the case and involved events that occurred a year prior, but was discovered when a Coast Guard Investigative Service (CGIS) Special Agent conducted a follow-up interview with another Coast Guard member who had testified as a Government witness at the Article 32 pretrial investigation. App. Br. at 7. This allegation prompted actions that form the basis for the first two granted issues.
Appellant was originally charged on March 1, 2011. The first Article 32 pretrial investigation occurred on May 17-18 (after the Defense requested more than one month of delay). Appellant was arraigned on the original charges on July 7, 2011. The CGIS interview of the Government Article 32 witness occurred on August 9, 2011. The convening authority subsequently withdrew and dismissed the charges on September 1, with a letter that:
stated that this action was based on the discovery of the new allegation against Appellant and his desire for Appellant to be “tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.”
App. Br. at 7. Five days later the withdrawn and dismissed charges were re-preferred, with the only change being an additional specification of assault consummated by a battery involving AET3 LS. A second Article 32 pretrial investigation was conducted on September 29 (after the Defense requested two weeks of delay), but that investigation involved only the newly preferred assault specification. The investigating officer “recommended disposition of the charge was disposal at an Article 15 proceeding or dismissal.” App. Br. at 8.
Despite the recommendation of the investigating officer, all of the charges were referred to trial by general court-martial. Appellant was arraigned on November 8, 2011. Excluding approved periods of delay, this was 163 days after the first preferral of charges, in violation of the 120-day regulatory speedy trial standard established in R.C.M. 707. Appellant moved for dismissal based on this violation, and on the basis that the withdrawal was for an improper purpose in violation of R.C.M. 604(b). The asserted improper purpose is the “thwarting the limitation in R.C.M. 601(e)(2) prohibiting joinder of offenses after arraignment without the consent of the accused is an improper purpose.” App. Br. at 10. The military judge denied both motions, and the Coast Guard CCA affirmed.
The third granted issue addresses conduct of the military judge during the trial proceedings itself. A civilian witness, who got involved in one of the alleged assaults as a good samaritan, testified for the prosecution on the merits. After he completed his testimony, “the military judge said to him, in the presence of the members, ‘Mr. Bechtol, I want to thank you . . . for coming up, for participating in this process as well as for your actions.'” App. Br. at 35. The Defense objected and moved for a mistrial, which was denied. Later in the trial, when a Defense merits witness was excused, the military judge asked, in the presence of the members, “he’s not a sentencing witness?” App. Br. at 37. The Defense objected to any party referring to sentencing prior to findings.
Appellant’s position at CAAF is that the September 1 withdrawal and dismissal was merely a withdrawal that did not stop the R.C.M. 707 speedy trial clock. He argues that:
[T]his Court must look at the underlying facts and circumstances and find that the convening authority’s intent was for the charges previously referred against Appellant to remain pending while an additional specification was preferred and subsequently referred. As such, the convening authority’s intent was consistent with a withdrawal of charges, rather than a dismissal.
App. Br. at 16. Put differently, Appellant argues that the dismissal was a sham. He supports this argument with the fact that “the government relied on the original Article 32 investigation, indicating the government’s view that the current proceeding was a continuation of the original prosecution, and not a new and separate one.” App. Br. at 20. But even if CAAF agrees that R.C.M. 707 was violated, the remedy may be dismissal without prejudice. So Appellant argues that dismissal with prejudice is appropriate in part because:
The government was barred from bringing the additional charge to the existing court-martial by R.C.M. 601, which prohibits the joinder of offenses after arraignment without consent of the accused. While this rule does not create a constitutional or statutory right, it does serve to benefit the accused by creating a certain stability to the trial process and firm the matters against which an accused must defend. In order to circumvent R.C.M. 601(e)(2)’s restriction, the government withdrew the charges and re-preferred them anew. Essentially, the government prolonged the time that Appellant faced trial and suffered restrictions on liberty in order to correct its own mistakes made during the course of its initial investigation. There was nothing precluding the government from proceeding to trial on the already arraigned upon charges. Further, simply preferring the additional charge against Appellant to a separate court-martial would have complied with both the letter and the spirit of R.C.M. 707 and 601. In taking the steps that it did, the government was clearly attempting to ease the burden of prosecution by sidestepping several Rules for Courts-Martial that were put in place in order to afford an accused some right or benefit. As such, this factor weighs in favor of dismissal with prejudice.
App. Br. at 25 (marks and citations omitted). This is directly linked to Appellant’s argument on the second issue:
The government’s withdrawal of charges represents a clear circumvention of R.C.M. 601(e)(2). In the convening authority’s action withdrawing the original charges, he states that his decision to do so is based on his desire for the accused “to be tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.” (JA at 219.) The government’s proffered justification indicates a clear desire to comport with the non-binding preference expressed in the discussion section of R.C.M. 601(e)(2), but in so doing thwarts the plain language requirements of R.C.M. 601(e)(2) itself. Under the unique facts of this case and the specific charges involved, “judicial economy” constitutes an “improper reason” for withdrawal under R.C.M. 604(b), especially considering that the additional charge was unrelated to the original charges, had occurred over six months before the original charges were preferred, and was belatedly discovered due to the government’s failure to timely interview its own witnesses.
App. Br. at 31-32. The brief also notes that the investigating officer recommended dismissal of the additional specification, and that Appellant was acquitted of the additional specification. App. Br. at 32.
The Government’s brief responds by focusing on the technical details of R.C.M. 707, noting that “a convening authority may dismiss charges even if he is contemplating future prosecution of the accused. R.C.M. 707(b)(3)(A) specifies that the speedy trial clock is restarted after re-preferral of dismissed charges. By promulgating this rule, the President intended that some dismissed charges would be preferred anew.” Gov’t Br. at 8. The Government also notes that while the original charges were not re-investigated at the second Article 32, the provisions of Article 32(c) states that a charge previously investigated in accordance with the Article need not be re-investigation unless the accused demands it:
Here, Appellant did not object to using the prior Article 32 investigation for the new referral, which relieved the government of its obligation to conduct one. Had he objected, the government would have had no choice. But the fact that he did not object does not negate the clear action of the convening authority to dismiss the case and to prefer new charges at a later time.
Gov’t Br. at 13. The Government also highlights facts that support the joinder of the new allegation with the existing offenses:
The government’s claim of judicial economy was not a mere pretext for withdrawal. Indisputably, witnesses, the military judge, and counsel would have had to travel for both courts-martial if two were held. The costs of holding two trials would be twice that of holding one. The military judge who heard the case was the only judge designated to preside over Coast Guard general courts-martial. Scheduling a second case in front of him or a military judge from another service would necessarily involve delay to get on the docket. These are legitimate concerns and Appellant, both at trial and to this Court, has shown nothing to indicate otherwise.
Gov’t Br. at 30. That the Coast Guard had only one military judge designated for general courts-martial is an interesting fact indeed. The Government’s brief also asserts an absence of prejudice to Appellant in the processing of the case.
On the third issue, Appellant’s brief asserts that:
The military judge should have disqualified himself under both R.C.M. 902(a) and 902(b)(1). With respect to R.C.M. 902(b)(1), which requires recusal where the military judge “has a personal bias or prejudice concerning a party . . .”, the military judge was clearly biased against Appellant and in favor of the government. He expressed his bias when he suggested to the members that Appellant was guilty, first by “thanking” Mr. Bechtol for coming to the aid of BM, and then by suggesting in front of the members that he expected the case to go to sentencing.
App. Br. at 39-40. The Government’s response is to wonder how this matters:
Appellant alleges that the military judge believed he was guilty. App. Brief at 38. The fact that he believed one part of a witness’s story does not equate to an opinion of guilt. But even if the record had shown that, it would not be grounds for the military judge to recuse himself unless the record revealed “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555. That does not exist here. Appellant points to nothing in the record, spanning over 1800 pages, that shows that the military judge’s decisions were tainted or favored one side.
Gov’t Br. at 34-35. Ultimately, as with the first two issues, the Government asserts an absence of prejudice to Appellant.
With the partial acquittal and what appears to be strong evidence supporting the convictions (along with the relatively light sentence), the absence of clear prejudice from the judge’s conduct makes it an unlikely basis for reversal, even though CAAF will probably remind us that “the influence of the trial judge on the jury is necessarily and properly of great weight and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, [where] the judge’s last word is apt to be the decisive word.” United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (marks and citations omitted) (link to slip op.).
But assuming the court finds prejudice in the way this case was brought to trial, this case presents CAAF with an opportunity to issue a significant decision about the ability of a convening authority to add charges post-arraignment without the consent of the accused, and about the strictness of the speedy trial standard in R.C.M. 707.