CAAF decided the Air Force case of United States v. McFadden, 74 M.J. 87, No. 12-0501/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 3, 2015. A sharply divided court finds that the military judge did not err in denying Appellant’s motion for a mistrial or in failing to sua sponte excuse a member for cause after the member equated Appellant’s invocation of her 31(b) right to remain silent to lying by omission. CAAF affirms Appellant’s convictions and the decision of the Air Force CCA.

Judge Stucky writes for the majority, joined by Judges Erdmann and Ryan. Judge Ohlson dissents, joined by Chief Judge Baker.

CAAF granted review of two issues in this case:

I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.

II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Appellant was tried in 2009 by a general court-martial composed of officer members. She pleaded guilty to one specification of unauthorized absence in violation of Article 86, and not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). The Air Force CCA affirmed in three separate opinions.

A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant testified in her own defense during the findings phase of her trial, asserting that she never formed the intent to remain away permanently. Yet during her testimony, Appellant acknowledged that during pretrial interrogations she invoked her right to remain silent when asked about her intent. Then the members were permitted to question Appellant (without first submitting their questions in writing to the military judge, as required by M.R.E. 614(b)). One member – named Major Cereste – questioned Appellant’s invocation of her right to remain silent, likening it to lying by omission:

Major Cereste, a court member, and Appellant then engaged in the following exchange:

Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission — so — exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?

A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that intent was to never come back.

Slip op. at 4-5 (quoting record) (emphasis added). Appellant’s counsel subsequently moved for a mistrial, but did not seek to voir dire or disqualify the member. The motion for a mistrial was denied, but the military judge instructed the panel (using language provided by the defense) that Appellant’s invocation of her right to remain silent was not lying by omission.

Judge Stucky’s majority opinion doesn’t explicitly state that the failure of the defense to challenge the member or make a more aggressive objection is the reason for the court’s decision in this case, but it comes pretty close. His opinion also highlights the discretionary nature of a military’s judge’s ability to do more than requested.

Judge Stucky’s opinion considers the two issues as two separate decision points in the case: (1) Should the judge have granted the defense request for a mistrial, and (2) Should the judge have excused the member despite the defense not seeking disqualification. He answers both questions in the negative.

For the mistrial, Judge Stucky highlights that “a military judge may, as a matter of discretion, declare a mistrial,” and that “a mistrial is an unusual and disfavored remedy.” Slip op. at 6 (marks and citations omitted) (emphasis added). He also notes that review of a request for a mistrial is based on “the actual grounds litigated at trial,” rather than the basis advanced on appeal. Slip op. at 7. And Appellant’s trial and appellate defense counsel were not of the same mind on the basis for granting a mistrial in this case;

At trial, Appellant moved for a mistrial, arguing that the trial counsel’s line of questions to Appellant caused Major Cereste to accuse Appellant of “lying by omission,” and that the Government was attempting to obtain “comment on her right to remain silent on the record and into the members’ ears.” Appellant now alleges that Major Cereste’s comments indicated that she had already found Appellant guilty of the offense of false official statement before the close of the evidence and instructions by the military judge.

Slip op. at 7. This proves fatal. Judge Stucky finds that “there is no evidence” to support the trial-stage claim that “the trial counsel was attempting to bring Appellant’s invocation of her right to remain silent to the attention of the members.” Slip op. at 7. Further, he notes that the military judge gave an “instruction approved by the defense,” and that members are presumed to follow a judge’s instructions. Slip op. at 8. These factors lead to the ultimate conclusion that “Major Cereste’s question was not so prejudicial that a curative instruction was inadequate, and there is no evidence the members did not follow those instructions.” Slip op. at 8. And so the military judge did not err in denying the defense request for a mistrial.

For the failure to excuse the member, Judge Stucky highlights that “Appellant did not ask to voir dire or challenge Major Cereste.” Slip op. at 9. This is a notable departure from the facts of Nash, where the defense did challenge the member after he asked questions that indicated bias. Noting that a military judge has the authority – but no duty – to sua sponte excuse a member, Judge Stucky and majority won’t now create such a duty.

Yet the dissenters do see a duty:

It has long been established that an accused has a right to an impartial and unbiased panel during a court-martial. And yet in the instant case, I conclude that the military judge failed to take the required steps to vindicate this fundamental right on behalf of Appellant, and that the military judge thereby abused his discretion.

Diss. op. at 1. In particular, Judge Ohlson notes that:

[A]s the provisions of Rule for Courts–Martial (R.C.M.) 912(f)(1), 912(f)(1)(N), mandate, a panel member “shall be excused for cause” when necessary to ensure that the court-martial is “free from substantial doubt as to legality, fairness, and impartiality.”

Diss op. at 6-7. He also finds that:

[O]nce the defense counsel made a motion for a mistrial, the military judge was required to consider any lesser remedies short of a mistrial that would adequately address the defense’s legitimate concerns.

Diss. op. at 8-9. The dissenters conclude that the military judge “was obligated to take the simple and appropriate step of voir diring Major Cereste and the other court members to determine whether additional measures were necessary to ensure that the panel remained fair and impartial.” Diss. op. at 9. Since the judge failed to conduct a voir dire, the dissenters find that the military judge abused his discretion by not sua sponte excusing the member because “the military judge should have recognized that Major Cereste’s statement substantively brought into question her fairness and impartiality.” Slip op, at 9-10.

Judge Ohlson’s dissent certainly gives the appearance that some measure of paternalism is still alive at CAAF. See, generally, United States v. Scalarone, 54 M.J. 114 (C.A.A.F. 2000). These words from the concurring opinion of Senior Judge Cox in Scalarone appear particularly significant in the context of this case:

[L]et me make it clear, I may be a “paternalist,” but after over 36 years of involvement with military justice and 22 years on the bench as a trial and appellate judge, I have witnessed for myself the experience level of the young military attorneys who represent our nation’s men and women. Notwithstanding the fact that, in the main, these young attorneys are zealous, conscientious, and try hard to fully represent their clients, they do not always get it right. Someone, somewhere, has to step in and insure that each servicemember is afforded the protections that Congress intended they have. It saddens me that the Chief Judge of this Court, the Judge Advocate General of the Navy, and many trial and appellate judges are quick to find “waiver” or some other legal theory to deny a servicemember relief if it is due.

54 M.J. at 118.

Case Links:
AFCCA opinion
Blog post: Remaining silent isn’t a “lie of omission,” but it’s ok if a member thinks it is
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

3 Responses to “Opinion Analysis: A weak objection and no requirement that a military judge do more in United States v. McFadden, No. 12-0501/AF”

  1. stewie says:

    So if I’m reading this correctly, a panel member could, in theory, get up and say “I think people with red hair are criminals, and you accused have red hair, how do you explain your testimony that you are innocent given this fact?”  And J. Stucky’s position is that the military judge would have no sua sponte duty in that case to excuse the member because of the “may” language?
    I think Velez sounds like a bad case if the argument is that sua sponte excusal is a drastic action, because MJ’s sua sponte excuse members are the regular in my experience.

  2. Monday morning QB says:

    “[T]hey do not always get it right.” ???  With all due respect to Judge Cox, neither do military judges, federal or state prosecutors or defense counsel, or even federal judges.  All based on my experience.  I have seen federal judges admit evidence for the government after three foundational questions – none of which tied it to an accused – and over the foundational objection of the accused.  Creating a requirement for a MJ to sua sponte remove a panel member in absence of an accused’s challenge, makes every case a plain error/implied bias analysis (which by its nature is necessarily outcome determinative and in the eye of the beholder) and invites untold Monday morning Quarterbacking (sorry I couldn’t resist) by the appellate courts.  What I did when I was on the bench and I thought perhaps the record was clear that a certain member ought to be excused was to specifically note my concerns on the record and ask the defense on the record if they had considered what the member said and whether they wanted to challenge the member.  Then I specifically asked the accused if he wanted to have that panel member on the panel, based on his discussion with counsel (without delving into privileged matters).  And I got his oral decision on the record.  There are a myriad of reasons the defense might want  a particular member on the panel that the judge doesn’t know about; for instance, perhaps that panel member has sat on court-martial or adsep boards before and the defense thinks the member is defense friendly.  Why should a judge launch a member sua sponte when the defense might actually want that person on the panel? Zach says there might be some measure of paternalism alive at CAAF; it’s not just alive at CAAF, it’s alive and well at the service courts too, and it typically rears its head when an appellate panel claims to apply and abuse of discretion standard to a trial judge’s ruling, then turns around and imputes their own judgment, (what they would have done had they been the trial judge).  If you ever get time, look at some federal circuit court opinions and see what kind of standard they apply to these types of decisions.  It’s 180 degrees out from military court paternalism.

  3. stewie says:

    They asked for a mistrial, isn’t that a pretty safe bet that they don’t want that panel member to sit any longer?
    The purpose of objecting is to raise an issue to the MJ.  That happened here. Federal Circuit court has a lot more experienced folks running both sides of the courtroom…it may not be perfection, but it certainly requires a lot less paternalism than military courts where counsel on both sides easily could have less than a year of criminal justice experience.
    I would also note that what you say you did from the bench is still more than what this MJ did in this case.  The dissent is correct, once the DC asked for a mistrial and laid out the reasons clearly, as they appear to have done, the MJ was then obligated to find lesser solutions to solve the problem than mistrial.  He chose an instruction, but given effectively that instruction was already given once as part of the standard instructions given at the start of trial, and clearly was ignored by the panel member, seems pretty much a non-solution.