The Air Force CCA has issued a published en banc decision in the interlocutory case of United States v. Wright, 75 M.J. 501, No. 2014-10 (A.F. Ct. Crim. App. Jan. 13, 2015) (link to slip op.).
The opinion appears to be jointly authored by Senior Judge Hecker and Judge Weber.
We’ve covered the Wright case sporadically (I summarized our past coverage in this post). It is a sexual assault case that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims.
The CCA’s opinion provides additional facts that I haven’t seen in print anywhere else:
- First, the Accused is an Airman First Class (E-3) who was accused of rape and other sexual offenses “related to his sexual encounter with a noncommissioned officer from his duty section following a shopping trip and an evening of watching movies and drinking.” Slip op. at 2. My understanding of Air Force rank structure is that a noncommissioned officer includes personnel in paygrade E-5 and above.
- Second, the first “Article 32 investigating officer recommended the charges not be referred to trial, citing his view that the named victim lacked credibility, his belief that there were inconsistencies in her various accounts of the events, and his view that the case contained evidentiary deficiencies (including the fact that a friend of the appellee who was present during the encounter stated the sexual acts appeared consensual).” Slip op. at 2 Three separate staff judge advocates (SJAs) concurred with this recommendation, including General Franklin’s SJA who “concurred with the investigating officer’s evidentiary assessment and recommended none of the charges be referred.” Slip op. at 2. General Franklin then dismissed the charges (likely due to the lawyer’s veto in Article 34(a)(2)).
- Third, the second Article 32 investigating officer also found that the evidence did not support the most serious charge (of rape), and the new SJA concurred. However, the new convening authority referred the rape specification “contrary to her staff judge advocate’s advice.” Slip op. 4. The Government then conceded that the military judge should grant a defense motion to dismiss that specification as improperly referred. Slip op. at 4 n.6.
The CCA’s analysis explains:
The ultimate issue before us is whether the military judge abused his discretion by abating the proceedings. The military judge found “evidence of central importance” was included within the approximately 3,500 documents being withheld by the Government on the basis of attorney-client and related privileges. He abated the proceedings when the Government declined to produce the documents pursuant to the court’s order. Under the unique circumstances of this case, we find the military judge’s ruling incomplete and ambiguous in that he abated the proceedings without taking sufficient actions to define what materials were appropriate for in camera review. Because the military judge’s findings are incomplete and ambiguous, we remand for clarification and action consistent with this opinion.
Slip op. at 12.
The CCA grants the Government’s interlocutory appeal under Article 62 with the following limited order:
The appeal of the United States under Article 62, UCMJ, is hereby GRANTED in that the military judge failed to take sufficient steps to define what materials were appropriate for in camera review before ordering abatement. The record of trial is returned to the military judge for clarification and action consistent with this opinion. We make no ruling as to the issue of whether the defense is entitled to receive any of the communications at issue pursuant to its unlawful command influence motion. After the military judge takes sufficient steps to define what materials are appropriate for in camera review and conducts this review, if he orders materials provided to the defense, the Government may either comply with the order or appeal any subsequent order for abatement or other remedy within this court’s jurisdiction to review.
Slip op. at 16.