Our #6 top story of 2014 again involves a military judge ruling against the government after getting frustrated and the government appealing. Vargas was a spousal assault special court-martial. Zach has previously discussed the case here and here. The case was delayed and continued multiple times. The last several continuances were based on the government’s request to accommodate witness availability. Several of those witnesses were government employees. The government last moved on 16 October 2013 to again continue the trial so all its witnesses could appear. The military judge denied the continuance and maintained the trial date of 22 October 2013.
The morning of trial, issues came up involving the government’s use of exhibits and a 911 call during its opening statement. The defense objected to the use of non-admitted evidence and the military judge sustained the objection. The government then asked for another continuance to allow it to present the witness necessary to lay the foundation for the 911 call. The military judge refused. The court-martial proceeded with opening statements and the government called four witnesses in its case-in-chief.
The witnesses must have been short ones because the government only started calling witnesses after lunch and by 1411, the four witnesses were done. The government then announced its remaining witnesses would not be available until the next morning.
The military judge was not accommodating. Especially as two of the three planned witnesses were local government employees. The military judge denied the continuance request – essentially just for a few hours assuming the case would break for the evening.
The government asked the military judge to reconsider and the military judge refused. The government announced an intention to appeal. The military judge pressed on. In front of the members the military judge asked the government whether it had any additional evidence. The government responded, “we don’t have any additional evidence at this time . . . .” The military judge asked if the government was resting the government refused to rest. The military judge then rested the government’s case for them.
The next day the military judge reconsidered her ruling and then affirmed her earlier decision.
The government appealed under Article 62, UCMJ. The Navy-Marine Corps Court of Criminal Appeals found jurisdiction and held the military judge’s ruling were an abuse of discretion. Here.
Next stop CAAF. Here. And CAAF continued a theme for the year – upholding the military judge’s decision and using strong language to characterize the government’s actions. Judge Erdmann laid the blame for the need for another continuance on the “government’s own actions” and referred to the government’s “remarkably casual approach to witness production.” Even referring to any limitations on the government’s ability to present evidence as “self-inflicted.”
CAAF addressed the central legal question of whether the combination of the military judge’s denial of the short continuance and resting of the government’s case qualified under Article 62 as “excluding evidence.” If it did, NMCCA had jurisdiction. And if it didn’t, NMCCA did not. Based on the way the government had put itself in a box, CAAF ruled that the military judge’s decision did not exclude evidence. The military judge did not tell the government it could not present a witness or an exhibit, but rather simply told the government it didn’t have any more time to present that evidence. Accordingly, the military judge’s ruling was not “excluding evidence” but was rather an exercise of the military judge’s responsibility to manage the case. So CAAF reversed NMCCA and sent the case back down.
Chief Judge Baker dissented, arguing that the issue was jurisdiction, not a referendum on the government’s actions. He viewed the government’s action as relevant as to whether the military judge abused her discretion in denying the continuance, but not relevant for the narrow jurisdictional question. He took the straightforward approach that the military judge’s order resting the government’s case had the effect of “excluding evidence.”
The jurisdictional parameters of government appeals under Article 62, UCMJ are important and that alone may rate Vargas in our top ten. But I’m a sucker for the stories as much as the arcane legal principles. And love the underlying lessons found in every case. In this one, there are some very basic lessons every trial attorney needs to know or be reminded of. The government knew the case was starting on 22 October 2013. Why not try to pre-admit the 911 call so that the question of using it in the opening was resolved up front? Why not have all the witnesses standing by – at least the local government employees? (One was a NCIS Special Agent returning from Afghanistan, but what about the local ones?). Is it a pain to make witnesses sit around? Yes. Is it something you should try like heck to avoid? Of course. Is it worth the pain to avoid the military judge from resting your case. It is.
Now, I don’t want to come across as if I am judging government counsel here. As those that know me, I have made more and more serious mistakes in dozens of courts-martial. My point rather is to learn from each one. And we should all take Vargas as another reminder of basic trial preparation. No trial counsel should view Article 62 as a way out. The case is won or lost for the government before the military judge.