On 28 August, the Army Court of Criminal Appeals decided an Article 62, adverse to the government in United States v. Muwwakkil.

After the recorded Article 32 in this case was completed, as usual a summary of the complaining witness’s testimony was prepared from the audio recording.  The audio recording was then deleted.  (Practice credit here.  There was a back-up recording being made at the same time. And in fact one of the recorders did malfunction during the hearing.)  They could only recover 52 minutes of the CW’s 2.25 hours of testimony; and it only had the direct testimony, not the all important cross and follow-up.  There was no verbatim transcript made.  (The military judge declined to order production of the defense paralegal’s notes made during the testimony.)

At trial the complaining witness was allowed to testify on direct.  After direct the defense asked the judge to strike the testimony, citing to the Jenck’s Act and R.C.M. 914.

After taking evidence and testimony the military judge agreed with the defense that there was a violation, and to striking all of the testimony – thus this government appeal.  The military judge (note to Air Force, and others) did not find the summary of testimony “substantially verbatim.”  The IO apparently concluded that the CW’s testimony was, “inconsistent with previous statements.”

On appeal, the government agreed that there was a Jenck’s Act violation, but disagreed with the remedy in a situation where, according to the government:

a. There was no showing of gross negligence.

b. There was no prejudice to the defense.

c. And the remedy was “unduly extreme.”

ACCA rehearses the oral findings of fact and conclusions of law made by the military judge.

ACCA and the parties agreed that the issue involves the abuse of discretion standard similar to other suppression issues – thus ACCA’s review was “necessarily deferential” to the military judge’s findings.

ACCA analysis sets out the following: if the loss is due to bad faith or gross negligence – striking of testimony is “mandated.” But otherwise it is discretionary according to a “totality of the circumstances” balanced against any available remedy.  The court also addressed the good faith exception found in other suppression issues.

ACCA finds the military judge’s findings and conclusions of government negligence are “amply supported” and not clearly erroneous.

Ultimately ACCA finds that the government is – my words – “simply” quibbling with the military judge, which is not the standard of review.

My practice note.  I take it the defense was not provided a copy of the audio recording.  I have always made it a practice to ask for a copy of the 32 audio immediately, and generally get that from Navy and Marine 32’s (likely because we usually do the hearings in the court-room, and so it’s easy to make a FTR Gold “readable” copy.  Had the defense been provided a copy of the audio before it was destroyed, there would never be an issue here.  A note for future IO’s and GR’s.  It’s always a good idea to dump a copy of the audio to a CD and give it to the defense before they leave the building.  I don’t believe this is the first time the 32 audio has been lost, it might happen again.

I would expect serious consideration on the part of the government to put this case before CAAF – up periscope.

On a side note, knowing this judge and where the trial was being held, there might be a back-story here if anyone knows it?

3 Responses to “The Army enforces Jencks”

  1. Recovering TDS says:

    They try so few cases there that there is probably very little for a backstory … Probably just inexperience all around. 

  2. Tami (a/k/a Princess Leia) says:

    I used to do my own recording of Article 32s.  Nothing prohibits defense counsel from recording the Article 32s themselves.  Although I suppose if the defense had done its own recording in this case, the MJ wouldn’t have tossed out the CW’s testimony.

  3. Charlie Gittins says:

    On several occasions in sex assault cases, I have brought a court reporter to my Article 32 hearing — when the G denies a request for verbatim T.  Always a stenographer, not an open mouth transcriber.  I call them my paralegal and in every case, they have been permitted to do their job.  I have also been faced with the G making a discovery request for the transcript, which I say I am willing to provide, if, of course, the Government pays for the transcription like any other party since my copy is work product and the court reporter is entitled to be paid for her work.  That always causes consternation in the OSJA since they really do have to pay.  In every case where I had the verbatim, my client was acquitted — poor preparation of the complaining witness leading to very damaging admissions at the 32, turned around on her at trial.  At one AF trial in south Dakota, I think just eff with me in a judge alone sexual assault case where I beat the CW senseless with her prior inconsistent statements, the judge announced the findings of not guilty individually, one at a time, instead of announcing “of all charges and specifications, not guilty.”  We had some laughs about that off the record after the trial because he told me it wasn’t even close and he just wanted me to sweat.