A case in the Air Force out of Dover AFB. Civilian prosecutors dropped a child sexual abuse case, but the military pushed forward. Air flforce Times has the report on SGTbJesus Munoz’s acquittal here. The Sergeants attorney’s spin:

“We presented housing and deployment records” at the trial, Waddington said. When the child testified, “he admitted he and his mother had been practicing a long time what he should say [on the stand]. … He said that if he didn’t come up with something, [he] was going to get in a lot of trouble.”

Patrick Air Force base public affairs had not responded Monday to an Oct. 24 request to speak to the prosecutor on the case.

Does this make the system look better or worse that it takes cases civilians refuse to prosecute and then the prosecution loses the case?  Because it happens in the sexual assault area a lot.

Iraq war deserters still in Canada, Winnipeg News reports here.

The Air Force is investigating how Chief Master Sergeant Eric Soluri was promoted three times after being convicted and serving jail time for a domestic violence offense. AF Times report here.

MSGT Timothy Hennis files ex write at CAAF, FayObs report here. Hennis, for our occasional reader, was tried three times for the murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty.  She was raped and killed in the Eastburn family’s home outside Fort Bragg on 9 May 1985.  The Eastburns’ three- and five-year-old daughters were also murdered.  Their infant baby was left alone in her crib.  The baby’s cries two days after the murders alerted neighbors that something was wrong.  Law enforcement officials quickly focused on Timothy Hennis, a soldier at Fort Bragg who had been to the Eastburns’ home to pick up a dog a few days before the murders.  In 1986, Hennis was tried by the state of North Carolina for the three murders and rape.  He was convicted and sentenced to death.  The North Carolina Supreme Court reversed the conviction, holding that the trial court erred by allowing the prosecution to present numerous grizzly crime-scene and autopsy photographs during the guilt/innocence stage.  State v. Hennis, 372 S.E.2d 523 (N.C. 1988).  Two justices dissented.  Id. at 528-31.  In 1989, Hennis was retried by the State of North Carolina and acquitted.  After advances in DNA revealed new evidence implicating Hennis, the military recalled him from the retired list to try him–his recall and the question of jurisdiction is the source of his ex writ–where he was convicted and sentenced to death.   See the rest of the story at our Top 10 post here.

Thanks to all of our zombie contributors for correcting my hastily posted prior version–it is your week and all.

28 Responses to “Military Justice News for Tuesday, October 28, 2014”

  1. Weirick says:

    Will the commanding officer be held accountable for what appears to be a failure in a domestic violence case?  We shall see.    

  2. k fischer says:

    No Man,
     
    Re: Munoz
     
    It only took them an hour to deliberate.  Not as good as the 15 minute deliberation in the Bagram abuse case Waddington defended back in ’06 or ’07, but still pretty indicative of the strength of the Government’s case.  
     
    Makes you wonder why the case was formally closed up in Delaware and did the Dover authorities have to justify closing it.  Also, this seems to be a good case to bring a motion under the Equal Access to Justice Act for attorney’s fees.  It really depends on what exculpatory evidence the AF TC and AFOSI knew about or turned a blind eye towards.  If an attorney could make out a good case that it was Nifong-esque, which based on the previous formal closing of the case, it very well could have been, then perhaps Munoz should employ a Florida attorney to file a motion in Federal Court against the DoD for Waddington’s attorneys fees billed at statutory rate of approximately $178 an hour.  
     
    Has anyone ever heard of filing a motion for civilian defense counsel’s fees under the EAJA after a highly questionable court martial?  Perhaps, this is a small way falsely accused Servicemembers can fight back to obtain justice from an injustice.

  3. John O'Connor says:

    Wouldn’t the availability of free counsel provided by the Government preclude an EAJA petition?  I’m not aware of case law, but my instinct is that the Government’s not going to be paying for counsel when they gave you one for free.

  4. k fischer says:

    John, 
     

    A criminal defendant must show… that: (1) his trial had been in progress during fiscal
    year 1998 or a subsequent year; (2) his net worth was less than two million dollars; (3)
    he had been a “prevailing party” in his criminal case, even though subject to possible
    retrial upon remand; (4) that his legal representation was not the result of court appointment;
    and (5) his attorney’s fees and costs are “reasonable.”
     

    That certainly will be asserted as a defense to the motion by the Government.  But, that would raise an interesting point if, like the Army, the Accused was appointed a junior Captain to defend him, while the prosecution had a specially trained, experienced Field Grade Officer SVP to represent the US.  But, that would be a consideration.

  5. ResIpsaLoquitur says:

    EAJA (28 U.S.C. 2412) uses the term “civil action” throughout the statute, so it’d be a stretch to see it apply to criminal cases.  I’m sure somebody would have tried that by now.  I’m also sure that if EAJA applied to criminal cases, we’d see a lot more pro bono criminal defense happen.
    That’s not to say that EAJA shouldn’t be expanded to include criminal cases.  I think we all know it’s a given that prosecutorial overreach leaves a lot of innocent people in a lurch, and they spend thousands of dollars clearing their name with an “oh well” from the government.  (Seriously, I think the government should be shamefaced any time a defendant is cleared and they had to pay for it out of pocket.  I get there are cases where someone gets off on a technicality–bad charging, improper evidence, etc.–but there are also plenty where either guilt is not established, or even better, they’re just plain innocent.  Why the **** are we not reimbursing people in those cases?) 
    A criminal-type EAJA should be carefully considered, though–should it be an all or nothing propositon?  If my client is charged with rape (questionable) and failure to go for being 5 minutes late to work (let’s say the proof is solid) and he’s cleared of the 120 but not the FTG, and the government lets the FTG stand out of sheer spite, am I still a prevailing party entitled to EAJA fees?  Basically, I’m saying that EAJA should apply, but we need to consider how to account for ridiculous results and fairness if it’s only a partial win. 

  6. stewie says:

    I’m not sure a junior CPT in TDS isn’t at least as good, if not better, than your average court-appointed civilian attorney. If for no other reason than the latter has a zillion cases and spends about five minutes per client which kind of wipes out any experience advantage.

  7. ResIpsaLoquitur says:

    Oh, wait, is there a criminal equivalent of EAJA?  I may look really stupid now if kfisher found something I didn’t know about.

  8. DCGoneGalt says:

    Maybe if the AF spent less time prosecuting imagined sex crimes (ignoring the truth doesn’t make your case better, unless you are competing for the “Most Laughable Acquittal Award”, which has stiff competition nowadays) they would have more time to notice an actual criminal was promoting his way to CMSgt.

  9. RKincaid3 (RK3PO) says:

    Sadly, this service member is probably still “titled” as an offender, and will remain so for 45 years. His acquittal does not change the titling decision–and it can and will have deleterious consequences on him and his career in the future–despite the fact that legally, he is not guilty of committing the crime. And, the service member is out significant personal funds.
     
    As for the fact that the military regularly and routinely takes and tries cases that no civilian prosecutor would ever take to trial, well, that is what happens when only 2/3 of those seated as jurors are required to convict (not a unanimous verdict by 12); where no more than 1/3 of the panel members can be enlisted (which ensures that enlisted folks won’t undermine/veto the commander’s decision to court-martial via an acquittal); where the charging decisions are made by non-lawyers for reasons having nothing to do with either the law or discipline (commanders, who make such decisions based upon what is best for their command, even though there is really no need whatsoever to impose a federal felony conviction as part of establishing/maintaining discipline) is also the one who picks the panel members who will hear the case.
     
    Fortunately, the panel members in this case had enough independence to acquit despite their being hand-selected (and may also be rated to some degree, via an NCOER/OER) by the same commander who referred the case to trial and put them on that panel. But, sadly, there is little comfort in this particular case: this wasn’t a sex assault case–so the panel members in this case aren’t worried that the specter of Congressional UCI (ala the Sinclair trial) will interfere with their career progression by denying them senate approval of their next promotions as a consequence of their decision in this case.
     
    Sigh…the only good news here is that the service member survived (mostly) his brush with the UCMJ. The bad news is that the systemic cancers within the structure of the UCMJ that allowed this service member to suffer and endure this ordeal will largely be ignored, or, more likely–as with Art 120–get worse–not better.

  10. k fischer says:

    Yes, ResIpsaLoquitur, you are apparently really stupid if even an idiot such as I am able to know something that you did not.  I’m duly impressed that you are willing to admit it.  But seriously, the EAJA is how I get paid for pro bono VA claims work (3-0 record for remands).  I take a case pro bono, and when I get the remand it becomes fo bono at $178 an hour. 
     
    The Hyde Amendment (18 U.S.C. § 3006A; 28 U.S.C. § 2412) allows a criminal defendant to file a motion for attorney’s fees under the EAJA.  So, would Munoz have to make his application to the Court Martial or to Federal District Court?
     

  11. RKincaid3 (RK3PO) says:

    I would love to see a succssful EAJA claim against the government for this kind of crap.  It is simply sad that this stuff largely goes on without any negative ramifications for the government.  Financial hits might at least start to slow them down long enough to make them THINK a little about whether the decision to prosecute should be based upon a consideration of whether they “should” prosecute, not just “can” they prosecute.
     

  12. ResIpsaLoquitur says:

    Hey, no need for fighting words, Fischer.  I deal with EAJA in my current job, but only in the civil litigation process.  As it is, I’m looking at 3006A and seeing that it applies to “district courts” and to defendants “unable to obtain adequate representation.”  So that’s two strikes against an EAJA claim in a court-martial–our defendants are de facto represented, and the military courts aren’t in the federal system in any meaningful sense.  (I don’t recall the last time a military judge was vetted by the Senate, either.)
    I’m not opposed to EAJA applying to courts-martial–I just don’t think it does under the present scheme. 
     

  13. k fischer says:

    RIL, 
     
    Fighting words?  I’m just agreeing with you…..Since we now know that the Hyde Amendment implements the EAJA to apply to criminal cases based on a different standard when prosecution is particularly vexatious, the only issue left is whether it applies only to District Courts.  Read NMCCR v. Cheney, 29 M.J. 98, 103 (C.M.A. 1989)(Accordingly, we hold that the United States Court of Military Appeals is “a court” for purposes of this Act).

  14. ResIpsaLoquitur says:

    Well, alrighty then…no harm done.  Anyway, I’ll cross my fingers and wait for a civilian attorney to bring a successful EAJA claim in a court-martial.  Heck, it’d be particularly funny if the government then converted it into a claim against the trial counsel and SJA who lost the case.

  15. RKincaid3 (RK3PO) says:

    Heck, it’d be particularly funny if the government then converted it into a claim against the trial counsel and SJA who lost the case.

    You know, if they are going after the SJA and TC who brought the case (not just lost it) because it was “vexatius litigation,” the civilian attorney should also go after the CG who referred the case, as well as the person who preferred the charges, and the Art 32 IO (if that IO recommended going forward to trial) 
     
    But, as much as I would love to see that happen (as a deterrent against bad-faith prosecutions beyond the conscience of the individuals involved, or concern for their bar license), I fear that such an attempt would violate a “discretionary function” exception, if the EAJA, like the FTCA, has such an exception. 
     
    Does it?

  16. Advocaat says:

    Re Munoz:  The CDC and the detailed AF defense team earned an acquittal.  The client elected to hire this CDC, as is his right, but I have no doubt an AF senior defender would have gotten the same result.  I celebrate the CDC’s success but not at the expense of military defenders.  And as a taxpayer, the discussion of milking me further to pay for services already at the client’s disposal (no case like this would ever be defended by a solo ADC) is educational, entertaining, a bit greedy, and wholly unpersuasive.

  17. Dew_Process says:

    @ Advocaat – the point being that the individual accused should not have had to retain counsel in the first place under the Hyde Amendment process – something that is notoriously difficult to win in any event.  As a former ADC and also SDC, there are some great military defense counsel out there that I’ve been privileged to work with – but, by the same token many – especially in the AF – are very inexperienced simply because of their lack of extensive litigation experience.  I’m not being critical, just pointing out an obvious fact.  Now, as a CDC, we get retained generally because of our litigation experience in complex cases — something that many AF “senior defender(s)” do not have either for many of the same reasons.

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

    Although many Soldiers seem to fit the elements, I suspect the Soldier is Feres-barred from bringing such a lawsuit.  What is the standard for Government bringing case to trial?  Good Faith belief they have the evidence to convict?  Not that a child extensively coached by mom would be good evidence of good faith.
     
    What about a Bivens lawsuit?  Vindictive prosecution, discrimination, etc.

  19. k fischer says:

    Advocaat, 
     
    Are you a Government attorney or a civilian attorney in a civilian firm?  Because if you are the former, you do not pay taxes unless you have an independent source of income.  You merely return a portion of which the taxpayer has provided for you. That is what we in church refer to as a “tithe.”  The Government does not create wealth.
     
    And, if you are a small business owner, i.e. partner in your firm, or an associate, then do you really think it is greedy for an NCO to recoup a portion of which he paid to his civilian attorney who defended him in a case where you have no doubt his detailed counsel could have achieved the same result, I am assuming because it was such bs.  Because as a small business owner I don’t.
     
    I would not disparage an NCO for being greedy simply because he didn’t stick with his uniformed defense counsel and wants the Government to pay for his civilian counsel.  Maybe it was a waste of his money because his counsel were quite competent, but I am not going to blame him for being a little distrustful, just like I never blamed my TDS clients when they hired Bill Cassara or Greg McCormack. 

  20. k fischer says:

    Leia, 
     
    Good point, but I think that Munoz could submit an EAJA motion to the military judge for a ruling.  I’m not sure Feres would bar recovery because a statute permits it.  I’m just saying that it would be worth a shot.

  21. J.M. says:

    Tried to post this last night, but the spam protection was acting funky. Anyone have that problem?

    @Adocaat- You’re argument against reimbursement for a CDC sounds to this layperson as if you haven’t taken into consideration the resources and advantages a good CDC has that a TDS would not but should have.

    I was accused of a 120 violation. The day I walked into the TDS office was literally his first day on the job after PCS’ing in and he already had a stack of Art 15 packets on his desk to handle. He was a great help and is in my prayers every night, but had I not hired a CDC, I would likely be in prison right now. My CDC had more time to focus on individual cases, contacts after over 20 years in the area that allowed him better access and faster responses from the SJA then a brand new CPT. My CDC had an investigator that found witnesses that CID ignored (in my case ignore is an accurate word. I gave CID, through the TDS, a number of names and they spoke to none of the individuals). The witnesses information eventually led to my accuser admitting to lying under oath and the charges being dismissed. The CDC cost me close to 20k.

    The inequality in the system showed itself at my Art 32 hearing. Two lawyers at the prosecutors table and two more sitting behind them passing notes. How many TDS attorneys were at my table? ONE. Unless the budgets and manning for TDS allows for equal manning, resources and defense investigators, accused personal that can show that the CDC brought something to the table that a TDS could not should be reimbursed.

  22. Christian Deichert says:

    Last time I checked, a military court has no jurisdiction to do anything outside of a court-martial.  Unless or until EAJA is incorporated into Title 10, how would a military judge have jurisdiction to even entertain a motion, let alone grand relief under a Title 28 act?
     
    Alternatively, if accused get EAJA rights at court-martial, perhaps a deal could be brokered wherein the military gained civil forfeiture powers in courts-martial.

  23. Charlie Gittins says:

    I do not believe there is any relief available in civil damages or attorney’s fees for a service member acquitted of a crime.  Feres is a bar; Bivens is a high hurdle along with prosecutors’ qualified immunity for acts they undertake as prosecutors.  On the other hand, for a military member who has been “wongly convicted and incarcerated” — like where he is acquitted and then convicted of the same crime in violation of the double jeopardy clause, there is 28 U.S.C. 2513 providing for up to $50K in damages to a person who has been wrongully convicted and imprisoned (and up to $100K for a person sentenced to death who is later acquitted or determined to have been wrongly convicted and sentenced).  Jurisdiction is in the Court of Federal Claims under 28 U.S.C. 1495.  In the coming months, I’ll be taking these statutes out for a test drive.  More to follow.

  24. Advocaat says:

    @J.M. – Congrats on your acquittal.  I agree an O-3 defender on his first day would not be equipped to handle any Art 120 case solo.  However, I have no doubt the Army would have also detailed a senior defender to your case (free of charge) had you not elected to hire a CDC.  The trial defense divisions of every service have the counsel to defend every type of case, with the possible exception of capital cases (that’s an entirely separate discussion and I would have no problem forcing GCMCAs to pay for capital defenders up front if they go down that perilous road).  Individuals are free to hire a CDC, just don’t expect me to pay for it.  I’m much more sympathetic towards the investigative assistance argument you made at the end of your post.
    @k.f. – I pay taxes, brother, and I do not support reimbursing anyone for hiring a CDC.  If the govt offers you effective representation at no cost and you hire expensive but also effective representation, I’d say it’s a bit greedy to turn around and ask me to pay for it.  Maybe galling is the better word.  Anyway, give it a go if you think you have an argument, I just hope and expect such a claim would not prevail.

  25. Phil Cave says:

    It has been some years now but I did once file a claim for expenses under the FTCA, FCA, Art. 139.  Never went anywhere, and the amount was relatively small at the time I let it go.
    Basis for the claim?
    Well we were scheduling an arraignment, so the government could stop the speedy trial clock.  We had message traffic with the MJ.  So I got on the road to location far south of me the day before arraignment thinking all is hunky dory.
    I arrive at a location far south of me and check in to my hotel.
    Shortly after I get an email from the MJ, he will not do the arraignment.  Why – because the government (and they could of been timely) failed to file the charge sheet and such with the MJ three days before arraignment.  
    So I get on the email and say MJ, can you please waive that, I’m in town and made the trip and the client and I are being put upon by the government’s lack of diligence.  No the MJ says, come back next week, all because the government didn’t file the paperwork three days before the requested arraignment date.
    So the basis of the claim was gross negligence on the part of the prosecutors.  While I lost a lot of respect for that MJ that day, can’t claim against him.  Not sure the other claim laid either, but it was fun doing.

  26. J.M. says:

    @advocaat: The investigative assistance was (IMO) an integral part of my CDC services. I paid the lawyer and gave him the names. The lawyer pays his investigator and gives him the names. I’m coming at this as a layman, but I don’t see how the two could be considered separate. And if they can’t be considered separate, then the investigative services are part of the legal services that I paid for and should be allowed to file a reimbursement claim for.

    The installation where I was assigned at the time had two TDS attorneys and 1 paralegal, 3 small offices and one small room with a VHS player for the art15 briefing video. The SJA had at least 4 lawyers (not counting the ones downstairs that worked in legal assistance) and at least 6 paralegals. Add in the SVP that was sent over and CID investigators, that is a pretty uneven parity of forces and I’m assuming budget. Even if a senior defender had been assigned, does anyone think he would have been downtown every night for a week talking to people? Would my TDS attorney have been willing to read the depositions (proper term?) he had taken to my accuser over a conference call and then flat out ask her why she was lying? Until the military is willing to give TDS even funding, manning, and investigators there is (IMO) a moral obligation to provide assistance to Soldiers that can prove that a CDC brought something to the table that TDS couldn’t provide.

  27. Matt says:

    @advocaat:
    Even if an SDC is appointed to help out the brand new TDS counsel, this doesn’t mean you have an experienced team.  I have seen some truly great SDCs, but I’ve seen some really bad ones as well.  I have seen SDCs who had never been in TDS, and had not even had a justice job for 6 years.  Why were they now an SDC?  Because they were promoted to Major and needed a leadership job. The result is an inexperienced SDC trying to train an inexperienced TDS attorney.  They may be good attorneys and good leaders, but litigation takes practice and experience.   Until the Army stops insisting on the “well-rounded JA” model, it’s MJ practice will continue to be deficient. 

  28. stewie says:

    I think “well-rounded” is going to continue for a long, long time. There is little movement I’ve seen towards anything else, and it’s emphasized on a regular basis.