Today CAAF issued the final decision of the term, reversing the Army CCA and reinstating the military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations, in United States v. Stellato, No. 15-0315/AR (CAAFlog case page) (link to slip op.).

In addition to CAAF’s decision in Arness (CAAFlog case page) (analyzed here), and its decision affirming the death sentence in Akbar (CAAFlog case page) (decision mentioned here), the court yesterday also decided United States v. Sullivan, No. 15-0186/CG (CAAFlog case page), rejecting the appellant’s assignments of error.

All of the term’s opinions (with brief summaries) are listed on our September 2014 Term of Court page. However, I have not yet updated the page to reflect the decisions in Akbar, Sullivan, and Stellato (I will do that after I complete the opinion analysis for each case).

Annual End o’ Term stats to follow.

16 Responses to “CAAF issues final decisions of the term”

  1. Tami a/k/a Princess Leia says:

    Excellent decision in Stellato.  Also that they named the trial counsel at issue.  Still scratching my head trying to figure out why the Government thought this was worth appealing.

  2. k fischer says:

    They did have it reversed momentarily, your highness…..

  3. Saul says:

    Can’t blame the government for appealing the MJ’s decision but this clearly was the right call.  As distasteful as it is for a person accused of these acts to go free without trial, the TC’s actions are more so because of the standard by which we should abide.  
    The classic words hold true today:
    The [prosecutor] is the representative not of an 
    ordinary party to a controversy, but of a sovereignty 
    whose obligation to govern impartially is as 
    compelling as its obligation to govern at all; and 
    whose interest, therefore, in a criminal prosecution 
    is not that it shall win a case, but that justice 
    shall be done. 
    Berger v. United States, 295 U.S. 78, 88 (1935).
     
    … if only all parties involved (including lawmakers) would uphold that standard in the changing UCMJ.

  4. Saul says:

    Further, I’d hope this case becomes required reading for all new trial counsel.   

  5. Tami a/k/a Princess Leia says:

    Well, from my perspective (and in the interest of full disclosure), I had some insider knowledge of this case.  I recall thinking to myself that this wasn’t a good one for Article 62 b/c it painted the government in such a bad light, and appealing would bring the really bad facts in a really public way that would make things worse.

  6. stewie says:

    My only concern with naming the TC is not the actual naming of the TC, but it’s the fact that I find it highly unlikely that he acted alone, as a rogue agent, or contrary to specific guidance from the SVP, STC, COJ, and the rest of his leadership. They escape being named, and the lower person on the totem pole is the only person called out.

  7. RY says:

    I agree for the most part Stewie. It is doubtful the TC was a rogue agent here, particularly since this was a sex case (as opposed to an Art 92 or a misdemeanor-level offense). I suspect he was either guided towards this view of discovery by his supervision in this case directly or in previous cases, and that guidance informed his approach here. In any event, there was either a leadership failure in allowing him to go rogue and not ensuring the proper approach to discovery, or in advising him to make blatant discovery violations. It’s hard to know for sure without an investigation. I’ve seen it both ways. This discovery gamesmanship continues strongly today and I’d really love to see more leadership in curtailing it (judges, in my view, only enable it by being so afraid to call out willful ignorance, to even walk close to the “e” word, and by failing to sternly enforce the liberal discovery rules).

  8. Totally Biased says:

    I’ve seen some CPTs get named or initialed in opinions who were just doing what they were told/taught. That bothers me, as supervisors/leadership got all of the benefit, but none of the cost.

  9. k fischer says:

    Stewie,
     
    I would imagine that it would be much easier to go rogue as an SVP than as a TC.  But, it sounds like in this case, the TC was rogue. 
     
    But, we can glean from the ACCA reversal is that the assistant trial counsel who was the SVP, a CPT FC, went to Mrs. MS’s home in West Virginia with the named TC.  I don’t know how much involvement the SVP had up to trial or whether it was the TC who was driving the train and the SVP was just going to hop on at trial.  But, the ACCA opinion indicates that the TC kept the SVP in the dark.  Also, the SVP went to the TC’s supervisors because she was being rebuffed by the TC when she attempted to get updates from him. 
     
    So, it sounds like the TC was rogue.  Plus, he was going to dinner with his wife and Mrs. MS.  Mrs. MS may or may not have bought dinner for him and she felt close enough to him to buy him a gift for his yet to be born child that he did not know about until after he returned from his deployment.  Those are just really bad optics.
     

  10. k fischer says:

    And, I’ve noticed from the ACCA opinion and my last court martial that SVPs are referred to as “the Assistant Trial Counsel.”  They are the Special Victim Prosecutor, not some lackey assistant.   They are the lead chair.  They typically have more experience and are higher ranking than the TC for the unit.  So, why are they referring to themselves as “the Assistant TC.”  It just sounds ridiculous when you have a Major be the ATC and a CPT as the TC.  Particularly when we know who is driving the train on sexual assault prosecutions.  Are they concerned that if the panel knows there is an SVP on the case, then they will lose credibility because they might be inclined to think that the SVP is a kool aid drinker?  I don’t know.  I’m just thinking out loud.

  11. stewie says:

    To be clear, I am not suggesting that every person I listed HAD to have been responsible for what happened in a direct sense (although in a leadership sense, yes, they are all responsible because no TC should be running around with the level/lack of supervision that apparently happened in this case). So it may be that someone, whether the SVP or COJ or whomever tried to put the deck chairs back the right way.

    Having said that, I still believe that TC either learned this behavior was ok or did not receive the guidance to reign him in if this was born out of his head alone. I guess another way of saying it is, no I don’t know the specifics, but it’s hard to imagine a situation where his conduct is attributable to him alone, with no responsibility to anyone in his technical/leadership chain.

  12. k fischer says:

    I get it.  I was with you there for a second because I remembered from the ACCA opinion that co-counsel was in the basement with the kid, while the TC was talking to the Mom about her box.  I couldn’t imagine the TC not having a conversation with the co-counsel about the Mom’s box that the TC apparently did not want to look at.  I know that would have been a big topic of conversation on the trip back from Morgantown.  But, then, I re-read the ACCA opinion which indicates that the Co-counsel apparently did not know anything about the Mom’s box until much later in the trial.
     
    I would think he went rogue because most folks are just trying to do the right thing the best they can……

  13. Phil Cave says:

    @Stewie.
     
    This might help establish an all too common position of the government on pre referral discovery, and spread the wealth in this case showing a deliberate decision to slow roll discovery.
     

    On February 25, 2013, CPT J. traveled to West Virginia to meet with Mrs. MS and Miss MS to discuss the case.  (And learned about the box.)
     On March 13, 2013, the Government preferred charges[.]
    CPT J., in consultation with the former chief of justice at Fort Bliss, decided not to respond to the accused’s first discovery request until closer to referral.

     
     
    Also had an interesting chat with the counsel about footnote 3.  I also note in chatting that the dismissal of charges has had a salutary effect of changing discovery practice in that jurisdiction.  It was needed, 
     
     
     
     

  14. Tami a/k/a Princess Leia says:

    CPT Jones was pretty much rogue.  The assistant TC wasn’t aware of the existence of the box until much later–she had been in another part of the house with Miss MS while CPT Jones was meeting w/ Mrs. MS and she pointed out “the box.”  CPT Jones was secretive about “the box.”

  15. k fischer says:

    Phil,
     
    Regarding Footnote 3, do you know who this civilian rape defender is?  Sounds like a horrible guy….Not!  Seriously, SHE actually sounds pretty reserved and professional in that she waited until the misconduct and discovery violations stunk of five day-old unrefrigerated rotten fish before she filed her motion to dismiss.  And, I’m glad she won the case (which sounded quite weak, so I really don’t think she was defending a rapist), and the TC might be a former Judge Advocate according to the interwebs….
     
    And, I agree with Saul.  This opinion should be required reading for all new Trial counsel.  Government lawyers should never use disclosure of discovery in a tactical manner.  If you are tempted to or feel you have to delay disclosing facts and evidence, then perhaps you shouldn’t be bringing the case. 
     
    And, in this case, I think Stewie was correct regarding other people who might should have been named in this opinion, in that the Accused’s supplemental brief indicates CPT Jones’ chief of justice and senior trial counsel agreed that the TC should respond to the Defense counsel’s discovery request a little closer to referral as a “tactical matter.”  Granted, they responded within a couple of weeks after referral, but why not just disclose it prior to referral? 

  16. stewie says:

    I’m just reminded of the Just Say No commercials from the 80s…it was you! I learned it from you!