Like many of our readers, one of the things I love about criminal law and military justice are the stories. Each case, each client, and each courtroom experience is a story. But some stories are better than others. And some reveal or remind of us of fundamental truths.

This year’s Number 10 story is the saga of United States v. Browser, 73 M.J. 889 (A.F.C.C.A. 2014). As discussed here and here, the military judge dismissed the spousal-rape case with prejudice after the government refused to turn over witness-interview notes for an in camera review following claims of Brady violations.

The Air Force Court of Criminal Appeal’s opinion (here) lays out the facts well, as does Zack’s previous post (here). So I’ll only give a short recap. Chief Master Sergeant Bowser was accused of raping his wife three times (1994, twice in 2008) along with forcible sodomy and battery. The case was a classic he-she said in the sense that the government’s principle evidence at trial was the testimony of the alleged victim. Along the way, there was a pretext phone call to the accused from the alleged victim, but it was suppressed.

After fights over late disclosures, the government made a final disclosure of two senior enlisted witnesses’ statements that were inconsistent with statements previously made by the alleged victim. In the process of turning them over, the trial counsel opined that the statements were provided in “an abundance of caution” and that the trial counsel was “erring on the side of over disclosure.”

In the following arguments, the government offered to turn over all its notes from interviews for an in camera review. 73 M.J. at 893. But then changed position and refused. The military judge ordered the government to turn over the notes for an in camera review and the government continued to refuse. Ultimately, the military judge dismissed the charges and specifications with prejudice and the government appealed under Article 62, UCMJ.

The Air Force Court of Criminal Appeals denied the government appeal in a strongly worded opinion. The Court found the military judge’s order was lawful and appropriate and that the government had no acceptable reason to refuse to comply. As a result, the Court found the military judge’s remedy of dismissal with prejudice was within his discretion.

One of the many wonderful aspects of military service as a judge advocate is the opportunity to work and experience criminal law from both sides of the courtroom. Of course, I can only speak of myself, but my service as a trial counsel made me a better defense counsel and my service as a defense counsel made me a better trial counsel. Working on both sides provides perspectives that most attorneys lack. Many of us have been to civilian training events with career prosecutors and career defense attorneys. I was always struck by how many career prosecutors and defense attorneys seem to have the default position that the other side is always lying, cheating, or stealing. But, of course, that’s not true.

Few of us know all the details and background of this case. The AFCCA opinion though tells a twisted saga. After a favorable discovery ruling on the motion to suppress the pretext phone call, the defense elected trial by military judge alone. The defense then announced it was withdrawing its objection to the pretext call statements. Presumably, the statements cut both ways and the defense decided to let the military judge consider them. Many of us have changed our litigation strategy based on the forum selected. The government responded by moving to recuse the military judge because he had reviewed the pretext phone call. Later, following more Brady discovery fights, the defense counsel moved to disqualify the trial counsel. The best adjectives to describe this court-martial escape me.

All of which brings me back to the idea of fundamental lessons. Why would the government refuse an in camera review? And even more perplexing is why the government continued to maintain that position on appeal? Why didn’t the trial counsel give over anything close to Brady much earlier in the process? And what was gained by taking such hard line positions?

Regardless of the rationales of the government in this case, the saga highlights for all of us, new and old the importance of not losing sight of the goal. For the government, that is justice. The government wears the white hat. And fighting for the sake of fighting is rarely the best or most effective strategy. Whether I have misread the specific facts here or not, Bowser can still remind us of those lessons. And that is why it is #10 in our list of the Top Ten Military Justice Stories of 2014.

7 Responses to “Top Ten Military Justice Stories of 2014 – #10: United States v. Bowser Article 62 appeal”

  1. Bobo says:

    The other side IS always cheating! How else could you explain the govt.’s incessant urge to certify every case it loses? It must believe the other side is cheating in order to send so many cases forward for another look. It’s hard to believe the govt.’s goal is justice given such circumstances as seen in Bowser, so many certifications, raiding defense counsel offices, telling accused and his counsel to stop doing their job, fabricating perceived threats due to use of the 3rd person, and so on. 
     
    I remember reading a lot of this Bowser stuff when it first came out. I’ve yet to understand the train of thought which concluded a denial of in camera review would yield anything but disaster. 

  2. Broken System says:

    The best adjectives to describe this court-martial escape me.

    Circus, although not an adjective… or is it?

  3. DCGoneGalt says:

    Are you saying that the person in charge of making Government litigation decisions that decided not turning the records over for in-camera review was a justifiable position should be sent to a repository for ‘misfit JAGs’?

  4. stewie says:

    Most government counsel aren’t cheating. Most government offices do the best they can. As with most things, a few bad apples, or poor supervision + immaturity, or pressure from above lead a few folks to do the wrong things.  Obviously, one of the problems we do have is that when the government does do bad things, there’s little in the way of meaningful ramifications for anyone involved.  We protect an awful lot.  Toss in the defense negative bias and you do have a perception that government is favored.  That’s not good, but I don’t think it extends to the other side is always cheating.

  5. k fischer says:

    I agree with Stewie, although the Air Force and Marine Corps seem to have had a lot of issues this past year…..and maybe the year before that……
     
    I’ve pretty much been out at Benning for the past 12 years, and I have found the SJA and COJ kind of drive the train on how far TC’s push the envelope.  When a bad egg is in power, then I typically get more phone calls from potential clients.  Seems like every third turnover yields a lot of calls.

  6. stewie says:

    Interesting, because now I’m seeing a lot more evidence that TC are running amuck without apparent supervision, which runs counter to what I saw/did both as a COJ and a defense attorney.  The results of said amuckery are predictable.

  7. k fischer says:

    So, when you meet with the COJ or SJA, I’m assuming they are surprised to learn about said amokery and quickly collar their amokified TC and apologize for the TC’s amokolian qualities.  Because the COJ or SJA with whom I have met are surprisingly supportive, or in the least ambivalent, of the tactics employed in those offices that I like to refer to as “JAG Gone Wild.”