Thanks to a reader, I can share this incredible order from the Air Force CCA, issued last Friday, scheduling oral argument for this Tuesday at 10 a.m., in the case of United States v. Sauk, No. 38398. The CCA specified the following issue for argument:

Whether this court should dismiss the charges and specifications in this case based on the government’s deliberate refusal to comply with a binding post-trial discovery order from this court, when no court has issued a stay of enforcement of such order. Alternatively, whether this court should hold appellate government counsel in contempt of court for willfully disobeying a lawful order to produce post-trial discovery? See United States v. Bowser, Misc. Dkt. No. 2014-08, __ M.J. ___ (A. F. Ct. Crim. App. 2014).

The CCA will sit en banc for the argument. The order provides a factual background for the specified issue. The court’s prior decision in this case is available here.

Update: Some of the comments to this post discuss the people identified as counsel of record for the Government in the CCA’s prior decision. I’ve been informed that the identified military counsel transferred out of the appellate Government section prior to this issue arising.

The Bowser decision was our #10 military justice story of 2014. The AF JAG subsequently certified Bowser to CAAF (discussed here). CAAF then rejected the Government’s initial brief and ordered it to file an amended brief addressing possible controlling or adverse authority (discussed here).

51 Responses to “TWIMJ Addendum: The AFCCA to consider holding appellate government counsel in contempt”

  1. Phil Cave says:

    http://www.dodig.mil/pubs/documents/DODIG-2015-055.pdf

  2. RKincaid3 (RK3PO) says:

    Wow…the arrogance of the government in these discovery disputes is just disgustingly palpable.  Sadly, as noted, this is not the first, and the way things have been going, it will not be the last.  
     
    THIS is what happens when the burden on government to convict its citizens of crimes is reduced.  These types of orders from our civilian judicial monitors on CAAF need to occur more often because right now, the utterly toxic military-political leadership environment has seriously challenged the belief that military personnel–be they commanders or JAGs on the service CCAs can apply objective JUSTICE concepts–in a setting where subjective satisfaction by both military and civilian political leadership is the yardstick of success–without jeopardizing their own personal careers and futures.
     
    I eagerly await the outcome of this case…

  3. Another Perspective says:

    Article 48 expressly gives the contempt power to CCA’s.  However, RCM 809 does not seem to provide any guidance on how that procedure works outside of the trial level.  It will be very interesting to see how this plays out.  Will appellate government counsel be given the opportunity to call witnesses?  If they are, will they?  If found in contempt, will he/she/they be sentenced on Tuesday?  Lots of issues…

  4. stewie says:

    Oh my.  On the one hand, I feel for the GAD counsel that has to argue this, as they were almost assuredly doing this with cover and direction from a senior person (which makes me hope that the Chief or whomever authorized this course of action has the temerity to be the counsel at oral argument).  On the other hand, I truly don’t understand why they would not comply with this discovery request.  What were they thinking? This is just an unforced, bone-headed error IMO. Get the discovery, then argue why it’s not relevant, or useful, or what have you.  Certify to CAAF? CAAF isn’t going to cover for this kind of blatant nose-thumbing at the appellate court, even if the appellate court is wrong.

  5. Zachary D Spilman says:

    On the one hand, I feel for the GAD counsel that has to argue this, as they were almost assuredly doing this with cover and direction from a senior person…

    Nobody ever went to the gallows for just following orders, right?

  6. stewie says:

    Did you just go Godwin on me?? I don’t think this quite rises to the level of going to the gallows for following orders.  I also think it quite fair to recognize the conundrum of a junior O3 being told by much more experienced counsel/senior officers that their path is ethically and legally sound and going with it despite reservations. There are even ethical rules dealing with such a situation.  If the counsel involved was more senior or experienced, my sympathy would accordingly be reduced, but if it’s some junior O3 who got the luck of the draw in writing this brief, then my sympathy remains for them, and my contempt for those who led that person(s) remains as well.
     
     
     

  7. Dew_Process says:

    This is just an unforced, bone-headed error IMO.

     
    Anyone with any experience in dealing with the AF CCA and the AF GAD knows which hole the rabbit jumped out of here.
     
    The Air Force’s Rules of Professional Responsibility are in AFI 51-110, linked HERE.  Specifically, Rule 5.1, RESPONSIBILITIES OF A SUPERVISORY LAWYER,  would appear to control.

  8. Advocaat says:

    Wow is right.  The JAJG Division Chief needs to argue this one him or herself. 

  9. DCGoneGalt says:

    Craven and worthy of contempt, if not legal then social.

  10. Phil Cave says:

    @DP
     
    Which is sort of interesting, because during the appeal there were three appellate government lawyers who signed the brief.  Major Daniel J. Breen; Captain Collin F. Delaney; and Gerald R. Bruce.  Does this order contemplate sanctions against all three, they’ve all entered an appearance in this case?  I don’t see the Chief trial and appellate counsel on it?  In which case, whether or not there is contempt liability there seems to be in favor of none.
     
    That’s not to say that, like Partington, the appellate court cannot take other measures against the counsel as well, including, but not limited to:  a bar to appearing before that court, referral to the TJAG for an ethics investigation.  It will be interesting to see if this case gathers as much attention as Partington.

  11. The Silver Fox says:

    Real classy move, Phil Cave.

  12. Phil Cave says:

    http://afcca.law.af.mil/content/afcca_opinions/cp/sauk-38398.u.pdf

  13. Burt Macklin says:

    As the merits of the brief has absolutely nothing to do with this issue, I think the Silver Fox might have felt that that personally naming the government counsel on brief does absolutely nothing to further any argument, other than needlessly splashing their names on the comments section.  
    You stay classy San Diego. 

  14. Don Rehkopf says:

    . . . . needlessly splashing their names on the comments section.

     
    “Needlessly?”  Seriously!  Some personal accountability is what is called for here.  Open defiance of a Court Order?  Sounds like an Article 92, UCMJ, offense as well.

  15. Zachary D Spilman says:

    I’ve been advised that both Maj Breen and Captain Delany transferred out of the AF appellate government shop before this issue arose.

    I’ve added an update to the post to reflect this information.

  16. Chuck Bass says:

    Why do you think it’s your job as posters on CAAFLOG to enforce “personal accountability”?   You have no idea if the named individuals are still involved in this appeal.  People PCS/PCA/separate all the time in the military.    Speculating and connecting real people’s names to allegations of professional impropriety when you don’t have all the facts is beyond reckless.
    This is irresponsible and disappointing.  

  17. Phil Cave says:

    Zach, thanks for the update.  And congratulations to those who have transferred.
    I agree, and take the point that it was unwise of me to use the court’s opinion in January as a source.  Got it.
    @DR.  The RCM 809, specifically notes that “The military judge may issue orders when appropriate to ensure the orderly progress of the trial. Violation of such orders is not punishable under Article 48, but may be prosecuted as a violation of Article 90 or 92. See also Article 98.”

  18. Advocaat says:

    I have to agree with keeping subordinate counsel off the CAAFlog gallows until more is known.  As outlined in the order, JAJG made a series of incredibly poor decisions, and those decisions likely came from an O-6/civilian equivalent (or higher).  How hard is it to figure out whether appellant’s case was referenced in the IG report?  Wouldn’t the government want to know and take appropriate steps?  The JAJG Division Chief not only needs to argue this issue, but he/she needs to show up with some discovery and a plan to get the rest if there is any indicator more information is out there (the AFCCA opinion noted the child was treated at a local ER and then Johns Hopkins, which means Maryland authorities probably took the lead and minimized OSI’s involvement; that information also casts a longer “what were you thinking” shadow on whomever quarterbacked this one for JAJG).  If past performance is any indicator, JAJG will instead double-down tomorrow morning unless AFLOA or AF/JA provides some leadership.

  19. TC says:

    Anyone going to be there so we can get a play-by-play?  How long does the audio take to get online?  Get your popcorn ready.

  20. DCGoneGalt says:

    Chuck Bass:  You were a great character on a great show.  I was hoping you would be gossip girl.

  21. Michael Lowrey says:

    TC: AFCCA is kind of random in when they upload the audio. It could be the next day, it could be in a month, it could be never.

  22. TC says:

    TY Mike :(

  23. Burt Macklin says:

    Speak of the devil and he doth appear – wearing his trademark scarf. Careful, DCGoneGalt, hell hath no fury like a Chuck Bass scorned.

  24. DCGoneGalt says:

    All he needs is the love of Blair Waldorf.

  25. Monday morning QB says:

    Too much hyperbole here.  This is the AF court getting someone’s attention.  There’s no way they are dismissing this case.  If they do, they’ll get certified and reversed by CAAF for being outside their lane.  The CCAs can hold someone in contempt, they can refer the case to an ethics investigative body, but unless they want to put another layer on the UCI/UI penumbra of Lewis and Salyer (where any government lawyer is de facto the CA) dismissal is outside their lane here.  This is an ethics issue, which is totally collateral to the merits of the case.  The ethics issue/investigation will take its own course.  It’s not a 92 offense either; it does not meet the elements. 

  26. k fischer says:

    MMQB,
    Without hyperbole, this blog would be as interesting as watching paint dry.

  27. wowzers says:

    Is publicity punishment? http://www.caaflog.com/2015/03/06/is-publicity-punishment/
    The Silver Fox says:

     
    March 6, 2015 at 1:52 PM  

    No, it’s not

  28. Dew_Process says:

    @ Wowzers = Digital “perp walk!”

  29. Zeke says:

     

    wowzers says:
    March 10, 2015 at 1:02 PM  

    Is publicity punishment? http://www.caaflog.com/2015/03/06/is-publicity-punishment/The Silver Fox says:
     March 6, 2015 at 1:52 PM  
    No, it’s not

    This is an interesting exchange, though taken out of context because Silver Fox was speaking of whether an accused has a right to not have his name drug out into the light – not whether a prosecutor has a similar right.  It’s ultimately interesting, though, because unlike the question of whether the accused has such a right, the Supreme Court has spoken specifically about publicity as it respects prosecutors in criminal proceedings, citing the “value of open justice,” and calling publicity as it relates judicial and prosecuting officials “the keystone” of our system:
     

    Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.

     
    Richmond Newspapers v. Va., 448 U.S. 555, 569 (1980)(internal citation omitted).  The Court noted that requiring and embracing the value of publicity as it respects the handling of criminal matters by government officials was not an American invention, and that outside commenters on the English system of justice in place prior to our revolution had noted:
     

    The main excellence of the English judicature consists in publicity, in the free trial by jury, and in the extraordinary despatch with which business is transacted. The publicity of their proceedings is indeed astonishing. . . . [The] judge, the counsel, and the jury, are constantly exposed to public animadversion; and this greatly tends to augment the extraordinary confidence, which the English repose in the administration of justice.
     

    Id. at 570.  With the value of publicity as regards “the judge, the counsel, and the jury” thus established, the Supreme Court went on in Richmond Newspapers to find:

    [Due] process demands appropriate regard for the requirements of a public proceeding in cases of criminal contempt . . . as it does for all adjudications through the exercise of the judicial power, barring narrowly limited categories of exceptions.

     
    Id. at 574.
     
    The concept that public prosecutors, especially when facing accusations of contempt, whether on appeal or at the trial level, civilian or military, should be sheltered and treated like precious negatives – obscured from the light and atmosphere of public criticism – is antithetical to the concept of American justice.  This is a government for the People and by the People – their prosecutors should grow to be well acquainted with their criticism.  The fact that we’re having to come to CAAFLog to read this “public” Air Force Court order, rather than being able to get it from the Court’s website, is indicative of a system too insulated from the public it is supposed to serve – a system more concerned with protecting the reputation of public servants than it is in actually serving the public.

  30. Burt Macklin says:

    @Zeke.  If you are able to set down the cross you apparently bear for all of the People and then take off the tin foil hat — this has nothing to do with “punishment.”  It is a matter of simple professional courtesy.  Especially in that it has already been made abundantly clear that the folks on the brief from several months ago are no longer with the division and not involved with this order at all.  Two of the three Phil Cave unapologetically “publicized” and you are now crowing about had absolutely no business being named on this post.  
     
    “What I want you to do is for your to stand there…and extend me some * courtesy.”  – Colonel Nathan R. Jessep, USMC.
     
     

  31. Zeke says:

    I was speaking to the fact that this order – of public import – is not published on the Court’s website, and I was responding more generally to the question by a previous poster: “Why do you think it’s your job as posters on CAAFLOG to enforce ‘personal accountability’?” 
     
    I was not speaking to Mr. Cave’s erroneous identification of counsel who were no longer detailed to the case… I figured Zach’s edit to the OP had cleared all of that up.  I agree, public criticism should be directed at the correct public official.  I note, that those correct counsel, even now, remain anonymous – which is the problem.  

  32. wowzers says:

    Breen, Delaney, and Bruce named themselves as govt appellate counsel by virtue of their work on this case. Court order addressed govt appellate counsel. If there’s a court document highlighting a change in counsel, now is a good time to post it. If you don’t have that document, I offer the following: Quibbling and whining in the name of professional courtesy is still quibbling and whining. 

  33. Phil Cave says:

    1.  To be clear, I do apologize to Breen and Delaney.  And will do so to their face should I run across them in person.
     
    2.  In the civilian community there is a great deal going on about prosecutorial integrity.  Much of the discussion relates to discovery.  Judge Kozinsk’s recent foray is only a tip of the iceberg.  
     
    3.  As DR and I have been discussing off-line (and others), there has now been one prosecutor convicted for failing to provide discovery in a civilian court.  It was quite egregious an offense.  The Center for Prosecutor Integrity (I will be at their annual summit in June) estimates discovery to be a leading cause of false convictions along with false confessions and flawed eyewitness testimony.  Some states have now created prosecutor integrity units to be a sort of IG.  One of the issues is keeping track records on prosecutors and jurisdictions where the problems occur.  I am satisfied it is a good idea to track prosecutors who play games with discovery.  That becomes relevant on a discovery motion if the particular prosecutor has a history of discovery issues.  That can help differentiate between a newbie TC who has yet to understand compared to the TC who is deliberately playing games with discovery.
     
    4.  @MMQB,  Friend, can I have you as the TC, or IO, or SJA, in any case where dereliction is alleged against my client.  You might not refer it.  :-)  If a TC negligently or willfully fails to obey a valid court order all of the elements are present for a conviction.  There is a duty (ethics rules, court rules, MCM, Justice School training, professional norms), the duty is known, and the duty is not performed.  Now, if you ask, should there be a prosecution for dereliction, then I think thats a different question.  I am not advocating prosecuting prosecutor’s for discovery violations in all cases.  If one were egregious and there was indication the TC was on notice and warned, that might be the unusual case.

  34. Advocaat says:

    @Wowzers, here’s some additional whining.  The order was not officially released as a public document, which illustrates why CAAFlog might want to be a bit more circumspect when it posts bootleg records, and now you want another document which may or may not have been made publicly available.  I think this is an important issue, I think AFCCA should have posted it on its website, and I would like to know how the argument went yesterday, but subordinate government counsel do not have the same independence as their civilian counterparts and we should tailor our comments accordingly as facts become known (e.g., if they were removed from the case, perhaps it was because they weren’t “on board” with JAJG’s COA).  Or maybe I’m quibbling.

  35. DCGoneGalt says:

    Advocaat:
     

    [S]ubordinate government counsel do not have the same independence as their civilian counterparts[.]

     
    Concur.  This was not a decision made on the fly  at trial by an O-3/O-4 or a conscious ongoing effort by a junior counsel who is acting on their own.  Appellate strategy is the purview of an O-6, at least.  And when one considers the recent pattern of discovery/compliance with court order cases in the AF, I would venture it is safe to assume the strategy has the blessing of folks with stars on their lapels since it is not unusual to be told to stand down/change vector by the boss’ boss’ boss on matters of lesser importance.

  36. DCGoneGalt says:

    Not that I am not a fan of whining and quibbling, it is a skill that I truly feel the younger generations are just now beginning to master and celebrate as a virtue.

  37. Dew_Process says:

    @Advocatt:   Unless the document was filed “under seal,” it is a public document, available to the public, whether released or published.

  38. DCGoneGalt says:

    Dew_Process:  That is true, I think it is the insinuation that the people listed were involved with the chosen government strategy that created the unease.  However, now that it is out “what difference, at this point, does it make?”

  39. Phil Cave says:

    1.  AFCCA orders usually get posted on the website, it just takes time to be posted.  The last posting to the website is 27 Feb, and the last order posted is around 21 Jan.  So I’m not sure the copy sent to Zach is exactly bootleg.

    And when one considers the recent pattern of discovery/compliance with court order cases in the AF

    2.  Are we suggesting that there have been long term ongoing issues in the AF, which may be part of the reason those of us who deal with AF cases have more than a usual interest?

  40. DCGoneGalt says:

    Mr. Cave – 2. Yes.

  41. Dew_Process says:

    On a somewhat related note, the Second Circuit just published a decision HERE issued yesterday, based upon an appellate attorney’s
     

    defaults in a number of appeals and his filing of motions that were not authorized by any rule of appellate procedure.

     
    Not 100% on point for sure, but indicative that AFCCA isn’t alone at being peeved at counsel ignoring deadlines.

  42. Paco says:

    Advocaat:  

    [S]ubordinate government counsel do not have the same independence as their civilian counterparts[.]

    This is not true.  Jags are bound by rules of ethics just as any other attorney is. This My-Boss-Made-Me-Do-It excuse is typically just an excuse from counsel who are unwilling to: 1) talk straight to their commanders or 2) stand up for their convictions. 
    As a prosecutor I was never made to do anything I did not believe in.  My superiors would not let me and that is not how I was trained.  If a new O2/O3 pencil whips a “yes-man” charging memo and then complains that he is “made” to do those charges, it is the bed of their own making.  If a counsel knows something is wrong and goes with it anyway, that was still their independent choice.  Art 37 specifically prohibits any commanding officer from reprimanding, etc any counsel with respect to any exercises of their function.  JAGs cannot hide behind the My-Boss-Made-Me-Do-It excuse.

  43. Advocaat says:

    @Paco, I agree with you but there is a distinction between a decision that is unethical or unlawful and one that you simply disagree with.  True independence means having the discretion to do what you wish for reasons that have nothing to do with professional responsibility.  You are fortunate to have never prosecuted a spec you thought was better left as uncharged misconduct for strategic reasons or a case you thought should have been NJP–military members follow lawful orders and directives they do not believe in all the time.  I have no idea why JAJG didn’t comply with the court order in this case but without all the facts, I don’t think anyone is in a position to conclude it was unethical or pillory subordinate counsel.  So, can anyone tell us what happened yesterday?

  44. Paco says:

    Just to clarify, my comment was about the general notion of military lawyers not being able to exercise independent judgment, it was not a comment about the Sauk case.  And apparently witnesses are keeping quiet about what happened. 
    As for spec “you thought was better left as uncharged misconduct for strategic reasons,” strategic reasons are not the complaints I ever heard from the My-Boss-Made-Me-Do-It excuse.  That excuse seems to be brought up in this forum a lot explaining antics of attorneys, I merely want to say generally that it is not a valid reason to go forward on a charge that can’t be proven or a charge you don’t believe in(for whatever myriad of reasons), arguing for a sentence you don’t think is proper, putting someone on the stand you know has lied before, etc. 

  45. DCGoneGalt says:

    Advocaat:  It is likely we will have to wait for the audio, I am sure lips are sealed on this one.  But then again, the audio may not be made available.  It was probably like the vast majority of appellate arguments . . . uneventful and boring.  In any event, until it is released I like to imagine it began with the judges shouting “Ya’ll gonna make me lose my mind up in here, ya’ll gonna make me act a fool up in here” and was followed with:
     
    – Govt Counsel: We will never comply.  Stamped it.
    – AFCCA:  Comply, double stamped it.
    – Govt Counsel:  No, triple stamped it.  No erasies.
    – AFCCA:  You can’t triple stamp a double stamp!
    – Govt Counsel:  [fingers in ears] LA, LA, LA, LA.
     
    But there is very little evidence to suggest that is how it went.  In fact, there is no evidence to suggest that.

  46. afjagcapt says:

    Pacosays:
    …That excuse seems to be brought up in this forum a lot explaining antics of attorneys, I merely want to say generally that it is not a valid reason to go forward on a charge that can’t be proven or a charge you don’t believe in(for whatever myriad of reasons), arguing for a sentence you don’t think is proper, putting someone on the stand you know has lied before, etc.

    I think the world you’ve lived in must be a wonderful place, but I don’t think it’s the same one I live in. This is the military, your boss can make you do it. Sure, at some point perhaps Article 37 is implicated, but are you really saying that you think it is a) an unlawful order for a superior officer to tell a junior JAG to press on a case the JAG doesn’t think will get to BRD or that the JAG doesn’t believe in (whatever that means) b) the expectation is, in that hypothetical, the JAG is supposed to refuse the order? I’m not talking about an order to suborn perjury or shred Brady material, I’m talking about a case where there are bad facts and the JAG thinks it’d be a better use of his/her time to do something else rather than press for an inevitable acquittal; the expectation is the O-2, O-3 is to fall on his/her sword every time? I’m just don’t see that.

  47. stewie says:

    Didn’t we just have a LTC thrown under the bus, and run over, called crazy, and who went from a pending assignment as a judge to retired, all because he didn’t want to prosecute a sexual assault case, that ended up not being prosecuted anyways? Not exactly something that makes a young CPT, uncertain of where the lines are or aren’t stand their ground.
     
    There is plenty of gray out there, and this idea that any lawyer knows where all the lines are, immediately, with little to no experience, is I agree a bit of a fairytale world.

  48. Due_Process says:

    Silence is not golden when it comes to what happened during oral argument today, unless the Court “sealed” the proceedings! SMH!

  49. k fischer says:

    afjagcapt,
     
    Paco and I must be from the same world because I pretty much got to do what I thought was right as a TC, junior CPT with one year’s experience.  Then as a TDS counsel, I saw how having the wrong SJA could be really detrimental to one’s career, yet I got out for other reasons.  But, perhaps I was fortunate that my bosses weren’t micromanagers and always appeared to trust my judgment, skills, and discretion as an counselor and litigator.  Had I stayed in the JAG Corps in today’s environment, then I would probably be counting the days until my retirement. 
     
    Yeah, I was told when I was a 1LT Legal Resistance Attorney that I probably shouldn’t have sent Congressionals to 10 Senators and House members regarding a business owner who was President Bush’s transition team, but my client got paid $2,000.00 back that was illegally taken from him, and my duty was to him.  And, maybe I practiced law without a license in South Korea when I threatened to blacklist a Korean landlord, then went off post to collect $10,000 for a Federal Contractor whose landlord was attempting to screw her out of her key deposit.  And, perhaps after my third UCI motion, my boss told me to give her a head’s up before I filed my next one, but 2 of them were successful.  But, nobody prevented me from doing what was right……perhaps because I went ahead and did what I thought was the right thing without seeking permission.
     
    The lines are pretty clear if you have this philosophy:  Do what you believe is right all the time according to your State and services rules of professional responsibility, and if your boss doesn’t like it, then get out and get a civilian job, or wait until you, he or she PCS’s.

  50. Phil Cave says:

    As Alice said,curiouser and curiouser.
     
    So after several reports today of what happened at argument, I was hoping we’d see the audio uploaded or something.  If you look at the website you will see two case decisions dated 11 March – today, and then some from 3 March.  Of course we know that the Order was issued 6 March.  That seems consistent with the rumor that neither the Order nor audio will be posted.  So it appears from other entries on the website that they selectively post Orders?
     
    At to this — Silence is not golden when it comes to what happened during oral argument today.  Are we sure?

  51. DCGoneGalt says:

    Think of the Court releasing audio like the Government thinks of discovery regarding UCI in sex assault cases:  You’ll get nothing, and you’ll like it.