CAAF decided the interlocutory Army case of United States v. Stellato, 74 M.J. 473, No. 15-0315/AR (CAAFlog case page) (link to slip op.), on Thursday, August 20, 2015. Finding significant flaws in the way the trial counsel (military prosecutor) handled his discovery obligations, CAAF affirms the pretrial ruling that dismissed with prejudice charges involving alleged sexual assault of a child, concluding that the military judge did not abuse his discretion in finding discovery violations and finding no lesser remedy adequate. CAAF reverses the decision of the Army CCA and reinstates the military judge’s ruling dismissing the case.

Judge Ohlson writes for the court. Judge Stucky writes separately, concurring in the result but disagreeing with the majority’s conclusion regarding one of the numerous discovery issues.

The accused, a mobilized reservist, was charged with various acts of alleged sexual molestation of his biological daughter, Miss. MS, from 2007 through 2009, when the child was between the ages of two and five years old. The asserted discovery violations in the case involve various items, but chief among them is a collection of materials (some of them highly exculpatory) assembled and held by the alleged victim’s mother and referred to as a “box” of evidence. Another item is a plastic banana allegedly used to assault the girl and subsequently held by civilian authorities. Other concerns involve a witness that the Defense sought to interview, and an expert whose testimony would have been favorable to the Defense but who suddenly died during delays incurred by litigation of the discovery issues.

The Defense sought multiple continuances of the trial, asserting outstanding discovery issues. The military judge granted numerous continuances, once “warn[ing] the Government that its decision to ‘take a hard stand on discovery
. . . invited disaster at trial.’ (Ellipsis in original.).” Slip op. at 10 (marks omitted). That disaster eventually arrived for the Government when the Defense moved to dismiss the charges due to prosecutorial misconduct and the military judge found “‘continual and egregious discovery’ violations by CPT Jones,” the trial counsel. Slip op. at 14. Then, “after considering ‘all possible remedies in this case’ and the requirement ‘to craft the least drastic sanction,’ the military judge dismissed the case with prejudice based on ‘the nature, magnitude, and consistency of the discovery violations’ in the case.” Slip op. at 14.

The Government appealed and in a published decision issued last November (discussed here) a three-judge panel of the Army CCA reversed the military judge, finding that the military judge “clearly misjudged the scope and magnitute of the discovery issues in this case.” 74 M.J. 501, 515 (A. Ct. Crim. App. Nov. 17, 2014). CAAF then granted review of two issues:

I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.

II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.

Yesterday’s decision reverses the CCA but does so by piercing through the CCA’s decision and “review[ing] the military judge’s rulings directly,” with  CAAF concluding that “the military judge did not abuse his discretion in finding discovery violations and in dismissing this case with prejudice.” Slip op. at 15.

It is, at first glance, the most significant prosecutorial misconduct case decided by CAAF since United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (finding prejudicial misconduct in the trial counsel’s findings argument). Where Fletcher defined the contours of Government argument, Stellato defines the contours of Government discovery.

Judge Ohlson begins his analysis by explaining that:

In deciding this case, we must evaluate two decisions by the military judge: (1) the determination that trial counsel committed discovery violations; and (2) the determination that dismissal with prejudice was an appropriate remedy in this case.

Slip op. at 16. Judge Ohlson analyzes the military judge’s conclusions with respect to five separate alleged discovery violations, and concludes that the military judge did not abuse his discretion in finding all as violations. The five violations are:

  1. “[T]he Government failed to respond to the accused’s discovery request pertaining to the existence of mental health records.” Slip op. at 22.
  2. “[T]rial counsel did not exercise due diligence in preserving or protecting evidence.” Slip op. at 23.
  3. [T]he Government denied access to [a witness] and took the untenable position that [the witness] was not ‘part of the charged offenses’ despite [the alleged victim’s] allegation that [the witness] was present for some of the abuse.” Slip op. at 26.
  4. The Government failed “to comply in a timely manner with the defense discovery request to inspect the banana,” because “trial counsel was readily able to gain possession of the banana from the Sheriff’s Department.” Slip op. at 29.
  5. “By effectively remaining willfully ignorant as to the contents of the box and by not disclosing its existence to the defense, CPT Jones [the trial counsel] did not disclose exculpatory evidence “as soon as practicable.” Slip op. at 36-37.

CAAF is unanimous in its findings of violations with respect to four of these issues, with Judge Stucky taking exception to only the majority’s conclusion with regard to the plastic banana (he finds that military authorities did not have possession, custody, or control over the item).

Of these five, the first (involving mental health records) was not reversed by the CCA or challenged by the Government before CAAF, and so there is no substantive analysis of the issue. But the other four combine to make Judge Ohlson’s decision a significant precedent for how military prosecutors must approach their discovery obligations.

First, for the trial counsel’s failure to exercise due diligence in preserving or protecting evidence, Judge Ohlson notes that “the R.C.M. does not provide any explicit requirement for the Government to preserve evidence upon the defense’s request.” Slip op. at 23. However, CAAF “has interpreted this requirement to mean that the ‘Government has a duty to use good faith and due diligence to preserve and protect evidence and make it available to an accused.'” Slip op. at 23 (quoting United States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986)). In this case, CAAF finds that the trial counsel failed to use good faith and due diligence in that:

The accused’s discovery request specifically stated, “The government is requested to preserve and produce [a series of] physical evidence for subsequent examination/use by the defense . . . .” And yet, CPT Jones did not seek to preserve any evidence from its key Government witness, Mrs. MS, or from the civilian law enforcement agency that investigated some of the molestation allegations against the accused. This failure occurred despite (1) the accused’s discovery request to preserve, (2) CPT Jones’s knowledge that these entities might have items of potential evidentiary value, and (3) CPT Jones’s access to this evidence.

Slip op. at 23. Judge Ohlson disclaims any intent to create new law (“In reaching this conclusion, we are not creating any new affirmative Government obligation to preserve evidence.” Slip op. at 24.), but this decision will reverberate in prosecution offices throughout the military, and will undoubtedly result in policy changes regarding the handling of defense requests for preservation.

Next, for the Government’s refusal to produce a witness, Judge Ohlson takes issue with fact that “instead of facilitating any discovery from Miss LRE, the Government opposed the defense request.” Slip op. at 26. Miss LRE was “approximately the same age as, and a friend of, Miss MS,” the alleged victim, and the alleged victim asserted that Miss LRE was present during the alleged assaults and had also been assaulted by the accused. Slip op. at 4. Miss LRE’s “legal guardian would not allow her to testify or speak with investigators if she was under threat of subpoena.” Slip op. at 11. Accordingly, the Defense sought to depose Miss LRE, however:

The Government opposed this request, asserting that Miss LRE was “not relevant to the charges before the Court,” and that Miss LRE’s inability to “hardly remember” the events was not exculpatory.

Slip op. at 10. The military judge denied the Defense motion to order a deposition, but he took action that ultimately resulted in Miss LRE submitting to an interview during which she contradicted the alleged victim’s allegations.

Judge Ohlson finds the Government’s position with respect to Miss LRE to be “untenable,” but it is a footnote that I think best highlights the court’s opinion:

This conclusion should not be construed to be a finding that the Government commits a discovery violation if diligent and good-faith efforts do not lead to a witness submitting to an interview. We recognize that “a potential witness at a criminal trial cannot normally be required to submit to a pretrial interview for either side.” United States v. Alston, 33 M.J. 370, 373 (C.M.A. 1991); United States v. Morris, 24 M.J. 93, 95 (C.M.A. 1987). Rather, we merely conclude that the Government cannot impede access to a witness, and the military judge’s decision as to Miss LRE was not an abuse of discretion under the circumstances of this case.

Slip op. at 26 n.9 (emphasis added). That CAAF (unanimous on this point) seems to equate the Government’s opposition to a motion for a deposition to the Government impeding access to the witness – particularly when the opposition was affirmed by the military judge’s denial of the motion – compels the close attention of every military prosecutor dealing with a recalcitrant witness.

Third, for the delayed response to the Defense request to inspect the banana that was being held by civilian authorities, Judge Ohlson’s conclusion is predicated on the finding that it was the military that really had control over the item:

[A] trial counsel cannot avoid [the disclosure requirements of] R.C.M. 701(a)(2)(A) through “‘the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial.’” UnitedStates v. Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998) (quoting United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997)). Article III courts have identified a number of scenarios in which evidence not in the physical possession of the prosecution team is still within its possession, custody, or control. These include instances when: (1) the prosecution has both knowledge of and access to the object; (2) the prosecution has the legal right to obtain the evidence; (3) the evidence resides in another agency but was part of a joint investigation; and (4) the prosecution inherits a case from a local sheriff’s office and the object remains in the possession of the local law enforcement.

Slip op. at 27-28 (footnotes omitted). Significantly, the majority is persuaded by the fact that “trial counsel had access to other evidence held by the [civilian] Department” Slip op. at 28. This is hardly an unusual situation, as local authorities often share evidence with military prosecutors. Yet while Judge Stucky dissents from this portion of Judge Ohlson’s opinion, he is alone in asserting that the item “was in the possession, custody, and control of the sheriff and his staff, not military authorities.” Con. op. at 1. As such, military prosecutors must now accept that with the benefit of cooperation from civilian authorities comes the burden of discovery obligations regarding evidence held by those authorities.

Finally, Judge Ohlson turns to the “box” of evidence. Assembled and kept by the alleged victim’s mother, the box of evidence contained, among other items:

notes of conversations [the mother] had with Miss MS about the allegations, journals that [the mother] kept about the allegations, and correspondence between [the mother] and the accused about the allegations. The box also contained a note on which [the mother] recorded a recantation by Miss MS.

Slip op. at 5 (emphasis added). The military judge found that the Government had constructive possession (and actual knowledge) of the box long before its contents were disclosed to the Defense, but Judge Ohlson takes aim at a particular bad act by the trial counsel:

Specifically, we note that the trial counsel in this case had actual knowledge of the existence of this box of evidence prior to the preferral of the charges. Indeed, the box was in the same room with him and within his view during the February 2013 meeting with Mrs. MS. And yet, instead of searching that box of evidence or taking possession of it, CPT Jones cautioned Mrs. MS about giving him any evidence because “everything I get will go to defense.”

Slip op. at 34. Judge Ohlson characterizes this as “willful ignorance” and notes that:

[A] trial counsel cannot avoid discovery obligations by remaining willfully ignorant of evidence that reasonably tends to be exculpatory, even if that evidence is in the hands of a Government witness instead of the Government. This prohibition against willful ignorance has special force in the military justice system, which mandates that an accused be afforded the “equal opportunity” to inspect evidence.

By effectively remaining willfully ignorant as to the contents of the box and by not disclosing its existence to the defense, CPT Jones did not disclose exculpatory evidence “as soon as practicable.”

Slip op. at 35-37 (citations omitted). This conclusion is – on its own – perhaps the least astonishing for military prosecutors, except when it is viewed in the context of the Army CCA’s conclusion that:

Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the Government’s control or possession.

74 M.J. at 513. Judge Ohlson does not go so far as to find an actual affirmative duty on trial counsel to seek exculpatory evidence, but he gets as close to that line as possible without crossing it. As a result, military prosecutors must approach situations that have the potential to yield exculpatory information with dry eyes and great caution.

With these violations, an explicit finding of prejudice seems almost gratuitous. Yet the Army CCA held that the remedy of dismissal with prejudice “is not authorized unless a military judge makes a finding that ‘trial counsel engaged in willful misconduct.'” Slip op. at 40. While CAAF reviewed the military judge’s ruling directly, Judge Ohlson turns away from that direct look to address this specific conclusion by the CCA:

To be sure, bad faith certainly may be an important and central factor for a military judge to consider in determining whether it is appropriate to dismiss a case with prejudice. [many citations omitted -zds] However, as the above summary of our case law regarding dismissal with prejudice demonstrates, a finding of willful misconduct is not required in order for a military judge to dismiss a case with prejudice.

Slip op. at 40-41 (emphasis added). Then, Judge Ohlson (with CAF again unanimous on this point) considers case-specific factors and affirms the remedy of dismissal with prejudice without making a finding of willful misconduct.

The immediate ramifications of this case are clear. The accused escapes this federal prosecution and the trial counsel is castigated by the court.

The repercussions of this case will continue for a long time.

Case Links:
ACCA opinion (74 M.J.501)
Blog post: Analysis of ACCA’s opinion
Accused’s brief
Government’s brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

101 Responses to “Opinion Analysis: Finding “deeply troubling” conduct by trial counsel, CAAF affirms dismissal with prejudice in United States v. Stellato, No. 15-0315/AR”

  1. SgtDad says:

    There is an interesting coincidence.  Have a look at what Judge Wardlaw just did to a prosecutor.
    I close with a hearty “Semper Fi” to the three Marines on the TGV between Amsterdam & Paris.  Unarmed & still advanced in to fire.

    “A crazed gunman, who opened fire with an assault rifle onboard a high-speed train was detained by a group of US Marines who were travelling on the service.The man is understood to have been overheard loading the Kalashnikov AK-47 assault rifle in the toilet by the un-armed Marines. Three people were injured when the man, believed to be a 26-year-old Moroccan, opened fire. As well as an assault rifle, he had at least six magazines with almost 200 rounds of ammunition. He was also carrying a knife.” Yeah, but they were Marines, so it still wasn’t really fair.

  2. Concerned defender says:

    Ethics aside, I bet the Army and JAG school taught him how to perfectly wear his PT belt with a jacket or just a T-shirt.  
    This accused life was certainly ruined.  He was redeployed from theater disgracefully to face the worst allegations a person can face, and was convicted.  Meanwhile, the forensic doctor said it was inconclusive, and a recantation of the allegation was contained in that box of evidence, and the accused apparently denied it the whole time. 
    This case is indeed very very troubling, and sadly a typical experience among the competitive TCs I’ve seen, willing to break rules to win.  I defended a Sex Assault once where the TC did the exact same thing.  I did not know of the evidence, but a co-defense attorney on a collateral case (two accused, two related cases with the same TC) knew of a “box” of exculpatory evidence and informed me during a recess at the Article 32.  The TC had previously been entrenched in a ‘no deal’ attitude regarding other disposition.  Long story short, we went from a GCM to a Chapter 10 in a few days (on other non 120 misconduct by my client).  I could share more war stories, but I suspect and hope that this CPT Jones will face at minimum a complaint on his state bar, or even disbarment proceedings.  This conduct is unacceptable on such a serious matter.  “Bad faith” is too light of a word.  He was purposefully and willfully ignorant, knowing the box was there and telling the mother he’d have to turn it over to defense. 
    It’s too bad the JAG Corp spends so much time on trivial things and so little time on the really important stuff.  If I had a nickel for every pointless meeting, web training, vehicle inspection, or the same old tired “ethics” training…  How about some real ethics.  Maybe teach and remind people of the US Constitution, and the real meaning of rights, rather than just paying lip service?

  3. Concerned defender says:

    Sorry, to clarify, he was not convicted.  That was an error in my post above. 

  4. Tacitus says:

    CPT Jones was rightly held responsible for his acts and omissions. Whether a first year attorney or an experienced hand, every lawyer who serves as an officer of the court must be held to the same standard.  Any policy short of that would undermine Due Process and the legitimacy of our judicial system.  That said, CPT Jones represented the US Army in this matter; and the US Army is equally at fault.  Any reasonable amount of training or supervision would have negated this issue long before it became one.  At a minimum, any half way diligent technical chain would get to the bottom of such matters after the first delay on the eve of trial.  Instead, they were apparently happy to squander thousands of tax dollars flying and housing witnesses for no purpose.  So by all means, throw CPT Jones to the wolves.  Then toss the SJA, CoJ, STC, and BJA, in after him.  Shameful.

  5. Responsibility says:

    We have no idea whether this “CPT K. Daniel Jones” has been held responsible for anything.  The only thing we know from this decision is that his name appears in an opinion published in an obscure legal reporter, written by temporary-appointment judges from an Art. I legislative court which oversees a separate justice system which is perpetually denigrated by the media and by members of Congress, a court which most military members have never heard of, and which even fewer civilians know about.  I don’t see any mention of this case in the mainstream media, and the service has made no effort to denounce this guy’s actions.  For that reason, I doubt CPT Jones faced charges under Art 98 for taking action which caused unnecessary delay, under Art 98 for failing to comply with procedural rules, or even Art 92 or for his dereliction of his assigned military duties.  For all we know CPT Jones is riding high on the hog somewhere with everyone around him unaware – or worse, unconcerned – of how he so brazenly betrayed his oath to support and defend the constitution.  And many of those who are concerned about CPT Jones’ intentional misconduct in how he went about providing justice to an accused are willing to chalk it up to “inexperience” even though we routinely expect younger military officers, with less education, to make competent and effective decisions where they are wielding means of lethal force and placing life and treasure at risk; we don’t give them an “inexperience” handicap.  This is just another example of how the military justice system remains the JV-team.  To think, this military prosecutor engaged in all of this misconduct in an effort to win a case when the military was going to hand pick the jurors he was going to have to try the case before, and they weren’t even going to need to be unanimous in order to give him his conviction.  Seems to me that its a pretty crappy prosecutor who feels the need to be slimy to win a case before a jury the government picked, and which didn’t even have to be unanimous to return a verdict of guilt.  One might argue that if a prosecutor can’t win a case without cheating when the scales are already so heavily tipped in their favor, then they need to find something else to do.  They certainly aren’t rendering any sort of service worth taxpayer money. 

  6. Advocaat says:

    Kudos to CAAF for laying out the facts in detail–that should be the standard for every opinion.  And while we don’t know the reasoning behind the Article 32 waiver, if it was for the strategic purpose of forcing the govt into a box (pun intended) and predicting TC would not correct the issues that led to the dismissal, then the waiver was absolutely brilliant.

  7. Dew_Process says:

    There are two other – but equally as troubling – aspect of this case, viz., first how ACCA literally bent over backwards to exculpate the governmental misconduct here.  Those were the officers (with presumably considerable military justice experience) who as judge advocates should have been all over these discovery violations and who should have reached the obvious result that CAAF reached.
    Second, the “take away” lesson is most likely going to be ignored in light of the fact that the recent change to Art. 32, to remove “discovery” from the proceedings where it needs to be to flush out BS charges.  I can here the argument now: “Your Honor, Stellato was decided under the ‘old’ Article 32 system and doesn’t apply here.” Never mind that Stellato waived his Article 32 . . . .  And we can only hope that as Responsibility notes above that this is ” an opinion published in an obscure legal reporter. . . .” and that certain U.S. Senators don’t get wind of it, as the next “reform” in the context of 120 cases will be to preclude review by CAAF.

  8. Dew_Process says:

    Dang auto correct!  **I can hear . . . .

  9. stewie says:

    CD, no this is not “typical” of most TC. That you keep saying that…well, volume doesn’t equal accuracy. The problem from my foxhole isn’t that most TC act this way (most are trying to do the right thing), the problem is that despite talking about how important crim law is, our actions show we really think Ad Law and BJA slots are way more important. Take a crim law expert who has had multiple tours on both sides of the aisle, some FORSCOM and some TRADOC, and take an attorney who’s done mostly BJA/AD/OP Law at Bragg/Hood/Drum etc…which one is more likely to get promoted?
    (And don’t do more than one defense tour, two might be ok, but it’s accepting risk).  The problem is we de-emphasize crim law expertise in practice even as we talk it up in theory. So a lot of these supervisors don’t necessarily know what right looks like, but they know how to do a 15-6 or Op Law or how to talk to a commander (of course a good TDS counsel knows how to talk to commanders as well).

  10. Vulture says:

    Responsibility.  An interesting post.  I checked the El Paso Times yesterday and their only Ft. Bliss story was about a golf tourney.  Some discussion on here about rouge attorney’s, but a while back the COJ of Ft. Bliss put a story in the Army Lawyer about lack of experience on both sides.  Frankly, I think he knew the whole time.

  11. Tacitus says:

    Stewie, I totally agree. This isn’t at all typical. That’s why the lack of training and supervision seems so apparent in this case.

  12. DCGoneGalt says:

    stewie:  I have only dealt with a few TC/SVPs that played discovery games but nothing like this.  If I was DC on this case I think my head would have exploded and it is likely my comments to TC/SJA would have resulted in them forwarding me to the ethics folks.  Even with the Art 32 waiver, is there no way that the DC didn’t take the concerns up the JA chain prior to litigating it?  I would have been furious at the TC, even more so after being told that SVP didn’t know, and if the SJA knew or refused to fix it I think that would be the point I would go comatose like Cameron in Ferris Buehler.

  13. Vulture says:

    For the record.  I found the article in question.  It is Sharpening the Quill and Sword, Maximizing Experience in Military Justice.  Dec 2010.  The article predates the time in question and was not on for Ft. Bliss or their COJ.  To that end, I still find the “above the fray” references to COJ’s unconvincing.
    Major Derrick W. Grace, USA

  14. k fischer says:

    I”ve found that when TCs act the way Jones did, going to the SJA is, in the words of Tone played by Anthony Kiedis, “a waste of time.”.  It’s much better to take Warchild’s approach to the Government.

  15. Saul says:

    How did MAJ Grace get brought into this?  His article is worth reading, so there’s that.

  16. Saul says:

    KF – we have had very different experiences. 

  17. Vulture says:

    Saul- Cut and paste.  Apologies to the author for out of context.
    The local paper still doesn’t have anything about it.  The Duke Lacrosse story made national headlines.

  18. k fischer says:

    Saul.  Indeed , Sir.  You should count yourself as one of the blessed.  And I should say that when I know the SJA will take the appropriate action, then I will go to him or her.  You can usually make a few calls and see what they are like.

  19. Duces Tecum says:

    @ Saul and Vulture:
    MAJ(P) Grace was the CoJ when this case kicked off.  He was the CoJ that along with the STC, CPT Stacee Cain, and Kenny Jones made a “tactical decision” to not turn over discovery until a later time in the proceedings.  So you unknowingly put his name in this discussion where it belonged.

  20. Dew_Process says:

    Justice Souter once wrote:

    Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial’s outcome as to destroy confidence in its result. Kyles v. Whitley, 514 U.S. 419, 439 (1995).

    Then of course, there is Rule 3.8(d), ABA Model Rules of Professional Conduct, which states:

    The prosecutor in a criminal case shall:  . . .   make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

    The fundamental question is, how could the collective knowledge of all concerned on the government’s behalf, not know what their discovery obligations are, legally and ethically?  And that’s a question that the Army TJAG should be asking.

  21. You Down with BRD says:

    In defense of ACCA, they’ll occasionally keep TCs (SVPs) in check:$FILE/mo-garcia,%20g.pdf

  22. k fischer says:

    Look!  ACCA reversed a case for, inter alia, UCI and provided analysis on why it thought the case was weak.  See US v. SSG Gabriel Garcia.  Thanks, You Down with BRD.

  23. stewie says:

    Yes, that’s great. ACCA is the appropriate place for that kind of case analysis vice pre-trial by a MJ. Totally agree with you kf! Glad we are on the same page.

  24. Vulture says:

    DT- OK.  Thanks.

  25. President Comacho says:

    It is sad and scary that a group of educated adults of sound mind could vote to convict in U.S. v Garcia. I really hope my sons never join the services. If it could happen to Garcia with these “facts”, it truly can happen to anyone. 

  26. k fischer says:

    Apparently we are not on the same page.  Read the paragraph where Penland describes why the case is weak.  How long would it take for the military judge to ferret out those undisputed facts.  I know that the arguments on how to interpret those facts will vary.  But, I think the Government and defense could reach a stipulation on what the facts are.  It’s kind of troubling that you can’t figure out what a weak case is, and you are of the opinion that nobody else can , at the pretrial phase.

  27. stewie says:

    No I don’t think a MJ can reliably figure out what a weak case is on a consistent basis without having some sort of evidentiary session. No, I don’t think the government and defense are going to agree on a stipulation that shows a “weak case” prior to trial, particularly since in many cases it will boil down to things like credibility, which usually can only be ascertained reliably through testimony and cross-examination. 
    Yes I do think an appellate court can reliably figure out what a weak case is with an entire record of trial before them. Most of the evidence Penland cited as weak was based on…wait for it…trial testimony.

  28. stewie says:

    Don’t know how the lone “No” got there, it was unintended.

  29. k fischer says:

    No, I don’t think the government and defense are going to agree on a stipulation that shows a “weak case” prior to trial, particularly since in many cases it will boil down to things like credibility, which usually can only be ascertained reliably through testimony and cross-examination. 

    Of course the Government and the Defense are not going to agree on what a weak case is.  I’ve never believed that the Government and Defense could stipulate on an opinion that a case is weak.  If it could be inferred by what I said, then I apologize.  Whether or not a case is weak is the ultimate question in this context!!!!  But the Government and Defense could stipulate to facts.  For instance:
    (1) Staff Sergeant CC accepted appellant’s offer of his clothes to wear as pajamas during the night in question, but she was unable to explain what prompted appellant to offer them.  Stipulated.   (2) Staff Sergeant CC did not report her allegations until multiple years after the incident in Friedberg. Stipulated.
    (3) Though SSG CC testified that she tried to maintain a minimal, normal working relationship with appellant after the incident, she agreed to travel alone and meet him shortly afterward in Heidelberg, shopping and dining with him. Stipulated.
    (4)  Staff Sergeant CC also provided appellant with multiple photographs of herself, scantily clad, testifying that she sent him these photographs so that he might have them reduced to and returned to her as a pin-up style painting. Stipulated.
    (5)  She also testified that she could not remember whether she sent him the photographs before or after the Friedberg trip, though the trip occurred shortly after her moving to Germany and meeting appellant for the first time.  Stipulated.
    Now, based on those stipulated facts, I would agree with the ACCA opinion where the appellate judges did not see the testimony or cross examination and were unable to witness the demeanor of those testifying that the case was weak.  I don’t see why a military judge cannot make the same finding of fact and law pre-trial to explain how a weak-a$$ case got to court-martial, but for UCI.
    And, perhaps the Government could call their counterintuitive victim behavior expert to the stand or provide a stipulation of expected testimony, but I don’t see why the MJ could not weigh that evidence in determining how a weak-a$$ got before him. 
    This analysis would be germane to the question of whether a dismissal as a remedy would be appropriate in that it should avoid unnecessary expenditure of scarce resources and should not create an actual injustice in place of an apparent one.  If UCI was found to exist and affected the referral decision, then the Government wouldn’t have to pay for their expert witness to testify at trial, save tens of thousands in travel costs, the five days a trial would take, Defense witnesses, paying for a Defense expert consultant, etc.  Also, if the case is weak, then the court would not be replacing an actual injustice with an apparent one because the accused should not even be there in the first place, but for the UCI.

  30. Alfonso Decimo says:

    If the key defense witness did not die before the last hearing, some lesser sanction than dismissal with prejudice would have been required. This is an important case, but going forward, judges will still be very cautious about applying this extreme remedy. My curiosity was piqued by one action by the judge. He denied the defense motion for a deposition, “but he took action that ultimately resulted in the [the witness] submitting to an interview.” What action? Judges will want to know, b/c they are reluctant to order depositions, but they sometimes seem appropriate, like in this case.

  31. stewie says:

    First, you’ve distilled facts that were developed in a record of trial with full testimony and suggesting those facts were present or even developed pretrial.

    Second, you have no idea if they would have stipulated to 3, 4, or 5. Did she tell them something different on those areas, did she testify she didn’t remember, did she lose it on the stand? I personally don’t find 2 a weakness.

    Effectively, you want a mini-trial before the trial (because you’ve admitted the need to see demeanor of witnesses…e.g. a witness can not remember because she is lying, or she can not remember because she was intoxicated, or she can not remember because of trauma…usually witnessing the witness testified can help distinguish among the three). You also now have CI experts being called in your hypo.

    I get that you’d like to keep weak cases from ever going to trial. But your proposal I simply do not find workable, nor do I beleive it would actually be able to be fairly or evenly delivered short of a mini-trial, and I don’t think that’s ever going to happen.

    I also don’t agree with the wide range of things you consider UCI or the fact that UCI is what leads weak cases there. The problem is that Congress wants weak cases there, and they’ve established rules to effectuate that. The way to fix that is to work to return the rules to some semblance of reasonableness.

  32. k fischer says:

    If the Government doesn’t stipulate, then you have your mini-trial.  It’s not the accused’s fault that his defense counsel has to call witnesses to show UCI.  If you don’t want mini-trials, then TJAG’s should ensure that all Convening Authorities are trained not to commit UCI.
    You are blaming the accused for UCI, you victim blamer.  You should place your focus on the actions of those responsible for running the UCMJ in an unfair and partial manner.  If you want to protect the ability for the accused to have a fair trial, then you should train All Convening Authorities not to commit UCI.  If you don’t want to have a mini-trial before the actual trial, then stop committing UCI.  When CA’s do commit UCI, then you need to protect Accused and dismiss the charge because they cannot have a fair trial at a Court-martial.  Let another sovereign prosecute the Servicemember in a fair trial when the military cannot provide one.
    And my proposal is workable.  In fact, I think that it very well could be appropriate to get into the merits of the case at a 39(a) hearing in a MTD for UCI under the current rules and case law.   
    I agree that Congress does not commit UCI per se, but their actions can cause UCI.  For instance, the sense of Congress provisions of the NDAA state that all Article 120 offenses should be disposed of at a Court-martial, the statements by POTUS, and Senator McCaskill and Gillibrand holding up promotions and Senate confirmations to further their fight against sexual assault in the military all creates the appearance of an inflexible disposition in Convening Authorities towards sexual offenses.  So, when you have a ridiculous case in which the IO recommends dismissal because the complaining witness is not credible, then perhaps a MJ should have a mini-trial to see how weak the case is and why the case made it in front of him.
    Most of this goes away when we get a new Senior Convening Authority, i.e. POTUS. 

  33. stewie says:

    And we get to the crux of where we fundamentally disagree…you think the President’s comments were so bad, and so widely received and apparently still ringing in panel member’s ears today so much that no one can get a fair trial untainted by UCI.

    I think the comments were general politician’s comments, taken that way by most who heard it, and barely remembered by anyone if remembered at all.

    And now you appear to want to extend UCI to all CAs based on “fear of Congress.”

    Again, without the minitrial, the MJ will not necessarily know they have a “ridiculous case” prior to hearing evidence so they’d have to do a “minitrial” in every single sexual assault case.

  34. Scott says:

    As a DC I would often argue in pre-trial motions that the weakness of a case was relevant to the MJ’s evaluation of whether UCI tainted the referral decision.  The best way to establish that the case is weak in pre-trial motions is pointing to a 32 officer’s recommendation against referral (assuming there is one).  It avoids the “mini trial” at the motions hearing because there’s already been a “mini-trial” of sorts at the 32.  
    It’s a much harder argument that UCI is driving a weak case to trial when an idependant IO/PHO recommended referral. 

  35. Dew_Process says:

    @ Stewie:  You said,

    Effectively, you want a mini-trial before the trial (because you’ve admitted the need to see demeanor of witnesses…e.g. a witness can not remember because she is lying, or she can not remember because she was intoxicated, or she can not remember because of trauma…usually witnessing the witness testified can help distinguish among the three). You also now have CI experts being called in your hypo.

    I’m not criticizing you or your position, but have we not now come full circle on why the need for a robust Art. 32 “investigation” is sometimes beneficial to everyone concerned?  Ahhhh, for the “good old days . . . .” which reminds me of a quote from Betrand Russell:

    The law of causality, I believe, like much that passes muster among philosophers, is a relic of a bygone age, surviving, like the monarchy, only because it is erroneously supposed to do no harm.”


  36. stewie says:

    DP, you are preaching to the choir there. There are 124 reasons why the changes to the A32 were bad/ill-advised/horrible…you’ve listed reason 74.

  37. k fischer says:

    And, more often than not, you would see this type of litigation where an IO recommended dismissal and the CA kept going. 
    And Due Process, most of these facts would be referenced in testimony at the Article 32, so you wouldn’t necessarily need a mini-trial. You could cite from the Article 32 transcripts.  Now, however, I think you could call the complaining witness to the stand to testify at the 39(a) session as a witness for your UCI motion.  That might be a way to get the complaining witness on the stand.  But, of course, you are going to have a devil of a time getting the IO to recommend dismissal of charges without impeaching the complaining witness at the Article 32.

  38. k fischer says:

    I’m talking about UCI in the referral decision, not in the panel’s deliberations for sentencing, although there is certainly some UCI in sentencing with everyone having to receive a dishonorable discharge.  I do think that CA’s are still aware of the President’s comments, at least MG Miller is, according to his interrogatories he had to answer in my last Court-martial.  Also, you seem not to be very concerned with apparent UCI, which is just as bad as actual UCI.  If a member of the public fully informed of the President’s statements, Congress’s sense of Congress provisions, and Senator’s actions, heard about the facts of my last case, which by the way was quite weak according to the IO who recommended dismissal, then they would question the fairness of my client facing court-martial after the IO recommended dismissal.  I know this because everyone I told about the case said that the only reason he is facing court-martial is because sexual assault’s a big deal in the military nowadays.

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

    Call me cynical, CPT Jones in Stellato is probably on a promotion list.  If he is on a promotion list, someone needs to have the courage to take him off it.  The problem with our system is that by the time ACCA or CAAF issue such a negative decision against the Government, years have gone by.  It’s hard to hold someone accountable (besides outing them in the opinion) for screw-ups years ago.  Now of course what should have happened was CPT Jones should have gotten a referred OER, but do you all think that really happened?  I doubt it.
    Perhaps a lawsuit for malicious prosecution would help change things.  Would such a lawsuit be barred by Feres?  Are lawsuits over Constitutional rights Feres barred?
    As far as the SVP in the Garcia case, she left the service last year.  She is very passionate about prosecuting sexual assaults.  But a TC (or SVP) shouldn’t allow that passion to lead to improper argument.  Invoking the “government war on sexual assault” or negative comments on the defense mounting a defense have no place in the courtroom!
    Agree that Garcia was a weak case, but with facts this weak, it should have been won on an RCM 917 motion.
    MAJ Stellato’s life is still ruined.

  40. stewie says:

    1. Sexual assault is a big deal period. It’s a big deal in society, and it’s a big deal in the military. It is not a big deal because of the President’s statements. It’s not as if it wasn’t important before, then he said some stuff, and now everyone is in a tizzy over it.  It was a big deal before he was even elected, and it will continue after he leaves.  You said earlier “this all goes away with a new CiC.” So which is it? you cite the President, Congress, Senator’s actions (which is a subset of “Congress”)…is it all of that or does it go away when Hilla…a new President is elected.
    2. CDR’s are much more focused on Congress than the President. But again, that’s not UCI. And if it’s referral your are focused on then that has zero to do with the President’s comments on sentencing.
    3. You’re not happy that weak cases are making it to trial. I’m with you, wish they didn’t, but I simply do not see “UCI minitrials” as the path to make that stop, nor do I want individual judges inserting their opinions on whether to go forward on each and every case that they think is weak under some “universal UCI” theory that all cases have UCI because…Congress.  Some MJ’s will be defense-friendly (yes they exist) and get rid of a case they think is weak…others will be government-friendly and not find any cases weak, even ones that objectively are.  I’m sure Judge kf would get them all correct, but Judge Snuffy might not.
    Tami, I guess I tend to hold supervisors more accountable than primary actors. CPT Jones had people who taught him the way to go. He had people advising him on this case. Unless he simply hid evidence and actions from everyone involved (which I just find hard to believe, but grant is possible) then it’s hard to think of giving him a referred OER and not looking instead to his leadership.

  41. J.M. says:

    k fischer:
    “I know this because everyone I told about the case said that the only reason he is facing court-martial is because sexual assault’s a big deal in the military nowadays.”
    Funny, that’s almost the exact same thing my Battalion Commander told me when I had a court martial pending.
    stewie: How can any CA look at what happened to LTG Franklin and not fear Congress?

  42. k fischer says:

    1.  The President’s statements were actual UCI.  The acts of Congress are apparent UCI in that they have the appearance of influencing a decision to refer, which is a bit more difficult to prove.  However, it is pretty easy to prove what POTUS said and he has an inflexible disposition towards certain offenses.  He has actual UCI because he can refer a GCM under Article 22, UCMJ.  So,  large portion of arguments go away when he is no longer President because the influence will exist with the most senior convening authority.
    2.  Congress’s actions can cause a CA to send a case to court-martial that has no merit where they have made it clear that all 120 offenses should be disposed of by Court-martial.  That creates the appearance of UCI in the CA, and it also makes him a type 3 accuser, as well, so he should be disqualified.  However, who is he going to be replaced with?  Another person.
    3.   I am not happy that the CinC was committed UCI, Congress is influencing Commanders by holding up promotions, which has the appearance of causing weak cases to go to trial.  Weak cases went to trial before, but they were few and far between, depending on the SJA.  I think that the way to make violations of Article 37 stop is by dismissing with prejudice and allowing the civilians to handle the prosecution, until the time where the Article 37 violations no longer exist.  There are judges that get things wrong all the time on Article 31 or 412.  So, does that mean those articles and rules of evidence should not exist?  You keep bringing up how some judges might get the UCI wrong.  Judges get crap wrong all the time.  In Stellato, the Judge got it right and the 3 ACCA judges got it wrong.  I don’t understand why some Judges getting stuff right, and other judges getting overturned on appeal has any relevance whatsoever.  And, had they not taken away the requirement that complaining witnesses testify at Article 32 hearings, then we wouldn’t have these mini-trials.

  43. Phil Cave says:

    How can any CA look at what happened to LTG Franklin and not fear Congress?

    And don’t forget LTG Helms

  44. k fischer says:

    I think that your personal example supports what I am saying.  I wasn’t your attorney, was I?
    Stewie, thinks you should stop using hyperbole because Military Commanders do not fear Senators McCaskill or Gillibrand and your personal anecdote is minimally probative of UCI because it is a mere data point, even though you lived through the hell and stress of a court-martial that sounds as though it should have been dismissed at the Article 32, but for UCI.

  45. stewie says:

    Congress. Can’t. Commit. UCI. Not actual. Not apparent. They aren’t a commander. They don’t remotely fit into Article 37. The fact that they’ve passed laws that we don’t like is their prerogative. The fact that they are passing laws that make commanders more prone to go forward may certainly be a problem, and it needs to be changed, but it is not UCI.
    So the fact that commanders are afraid that Congress is looking at them is something that needs to be addressed, but it isn’t through calling every single SA referral UCI…because…Congress, and then using that argument to have a MJ effectively conduct his own 32/referral review.
    It’s by getting Congress to change the laws to something more reasonable.  There is no easy button fix here.

  46. J.M. says:

    k fischer: No sir, David Court was my attorney, and a godsend.
    stewie: Sir, I am not a lawyer, nor am I well educated. But when I see members of congress blocking promotions, such as GEN Helms, how is this not influencing other Generals and Admirals? Congress has to approve a generals promotion. A congresswoman blocks a generals promotion because that general did they didn’t like. To an non-lawyer, that looks like the civilian leadership of our country influencing future court martial decisions.

  47. K fischer says:

    congress. Can. Cause. A. Commander. To. Have. An. Inflexible. Disposition. Towards. Certain. Offenses.  That means they can cause UCI.  They might not directly violate it, but if a CA is ever honest enough to admit it forwarded charges because they were worried about their promotion so they decided to refer every 120 offense to a court martial, then would that be UCI?  Would Congress cause it?

  48. Ed says:

    Stewie Assume you are right that Congress cannot commit UCI. How about obstruction of justice . I assume the speech and debate clause removes the threat of that issue but isn’t there a procedural due process issue if a CA has a legitimate fear of not being promoted if he declines to move a 120 case to trial. Query why did CINC  do nothing to protect Helms?

  49. K fischer says:

    Btw the answer to to aforementioned question is “yes, congress would have caused the UCI.”  And to paraphrase one of the Greatest movies ever, “Its not D E R E, it’s D E A R, and Sarah ain’t got two r’s, Stewie.  Damn, you dumb!”

  50. stewie says:

    Anything can cause a CDR to have an inflexible disposition. His/her momma. His/her preacher. His/her own surly disposition. Eczema.  To be less flippant, they could have a bias against Muslims, or be a racist, or a sexist, or think gingers have no soul.
    None of that is UCI. You know it’s not UCI. There isn’t a single case that remotely stands for the proposition that Congress can commit UCI. But please, continue the argument that I’m “dumb” because it’s oh so persuasive.
    And no it’s not obstruction of justice to pass a law.
    If you want, call a commander every single time and try and get them to say they didn’t refer the case for the proper reasons, and attempt to make an argument for improper preferral or referral if you want to make that argument.  That at least would be within the realm of fitting into an actual law or legal principle.
    “Anything that causes a CDR to be inflexible = UCI” ain’t it.

  51. Burt Macklin says:

    I bet those UCI causing Congress (men)(women) are on the promotion list, getting plum assignments! A LLM AND Ways & Means? For shame. 

  52. No UCI in Congress says:

    Congress cannot commit UCI, simply because they did not make it apply to themselves.  What Congress theoretically can do, however, is take action which would be UCI if done by a commander that deprives an accused the right to a fair trial (aka, denies due process of law).  But that’s purely an academic exercise. It’s not actually possible to convince a court that anything Congress might do has the effect of denying a military accused due process.  Congress has denied all military accused trial before a randomly selected panel, subjecting them to trial before members hand-picked by the person who is levying the charges against them.  That apparently doesn’t offend the military courts’ view of the due process clause.  Congress has denied all military accused trial before 12 jurors, allowing a mere 3 to suffice.  That apparently doesn’t offend courts’ conception of due process, either.  Congress has also denied all military accused the right to only be convicted if the jury is unanimous, permitting a mere 2/3 majority to suffice.  That doesn’t cause military courts to bat an eye either, perhaps because they are pretend courts, without the true independence that comes with lifetime appointments.  If Congress can do all that, flagrantly trampling fundamental Anglo-American concepts of criminal due process, I doubt a little rhetoric from a completely forgettable Senator or two is going to be what offends a military appellate court.   The clear message to our young people from all of that: If you don’t want to be subject to Congress’ unique approach to “justice,” which is largely untempered by anything so trivial as the Constitution, then don’t join the military.  If you do join up, and if you have a penis, then know you’re already a sexual assault suspect, and that, should you be accused of that crime of which you are already suspected, then accept that Congress has been busily making sure that any panel that tries you will has been “trained” annually that: 1) you are a predator, 2) that your accuser is a victim and is to be believed (and will be called a victim even in court and even before you’ve been formally convicted of anything), and 3) that anything your victim did that seems counterintuitive to having been assaulted is actually entirely consistent with victim behavior, is proof of your guilt, and that the jury should be ashamed of their victim-blaming ways in even thinking otherwise.  Further, young people should know that if they join up, they’ll be tried by prosecutors who are pretty much free to do and say what they please.  They’ll be defended by defense counsel who, though usually zealous, sometimes have less than 5 years experience as a lawyer, and much less as a defense attorney, are often either unsupervised or are supervised by someone of like experience, and that their promotions and assignments in the future depend on the actions and opinions of the same government lawyers who advise the commanders who bring charges against their clients.  That’s Congress’ idea of Due process of law… And military lawyers will defend that system like it is the second-coming of Christ.  Further, evidence and reality be damned, military lawyers will also argue with straight faces that the military justice system is separate but equal to civilian justice with the same furor as a Jim-Crow segregationist.

  53. k fischer says:

    You S.o.a.B.
    I agree that Congress is not subject to the UCMJ, therefore, they cannot commit UCI.  However, I am saying that their actions could result in unlawful conduct under Article 37, i.e. holding up promotions when Commanders take lawful actions, telling Commanders at what level 120 offenses should be disposed, etc.  Your use of Congress being influenced by Eczema or Gingers having no soul are ridiculous.  You can’t see the connection of how McCaskill holding up a promotion might cause a CA to send every case to a GCMCA out of fear he won’t be promotoed, and under the right circumstances where the case is very weak, might cause prejudice to the Accused and not be harmless BARD?
    In support of my opinion that while Congressional actions are not UCI because they are not subject to the Code, but their actions could cause Commanders to have an inflexible disposition towards certain offenses, which is unlawful command influence, I offer footnote 24 of US v. Simpson:
    Although the appellant contends that unlawful command influence may result from actions by members of Congress, we note that, by its terms, the Article 37, UCMJ, 10 U.S.C. § 837, proscriptions against unlawful command influence are limited to persons subject to the UCMJ. While actions by civilians not subject to the UCMJ may cause unlawful impact on those who are, see, e.g., United States v. Doherty, 5 U.S.C.M.A. 287, 17 C.M.R. 287, 1954 WL 2604 (1954), no military court has held that congressional action actually constitutes an Article 37, UCMJ, violation. We need not decide, however, if comments by members of Congress demanding swift and severe punishment for malefactors could constitute actual unlawful command influence, because we find no evidence that comments by Senator Mikulski and others were communicated to MG Longhouser, COL Glantz, the court members, or anyone else charged with making decisions regarding the appellant’s charges.
    U.S. v. Simpson, 55 M.J. 674, 685 (Army Crim. App. 2001) aff’d, 58 M.J. 368 (App. Armed Forces 2003)

    By the way, King was my favorite character in Platoon.  I found it ironic that Francis, who stabbed himself in the leg to be a two-timer to get out of Vietnam, was insulting King for being dumb because he couldn’t spell where King somehow managed to survive the war and do a full tour where everything afterwards would be gravy.

  54. Alfonso Decimo says:

    Stewie – You are right. We can anticipate a slew of these fruitless motions apparently. 

  55. k fischer says:

    Considering that I am the lone voice in the wilderness on this subject and I take but 2-3 military cases per year not all having to do with Article 120, I doubt you will see a slew of motions arguing what I am arguing here.  And, you are probably right that such a motion would be “fruitless,” would result in the DC getting lambasted by the military judge, and would result in the DC having a reputation for a “scorched Earth policy.”  But, I find it interesting that you didn’t use the word “meritless” to describe such a motion. 
    I fully anticipate such a motion to be fruitless.  Its just like when I was a basic trainee at Ft. Dix in 1989.  The 1SG called a midnight formation to “investigate” whether DS Lendoff ordered PFC Snuffy to eat his chow like a dog in the lean and rest.  He asked the entire company if anybody witnessed it and if so, then for the witness to take one step forward.  We all witnessed it.  All 150 of us.  Not one of us took a step forward, including me.  Nobody liked the kid; he was an oxygen thief.  I always wondered if I would have stepped forward if PFC Snuffy was my friend.  Probably not.  Even at the age of 18, I knew I had to get through my enlistment, so I could go to college.  So yeah, I fully expect a MJ to do everything within his power to ensure that there is nothing to see here no matter how absurd the referral of a court-martial is, resulting in my motions being fruitless if that’s what you meant.

  56. stewie says:

    I truly don’t know how else to say it. Just because I don’t think something is UCI does not mean I think “it’s ok” or “there’s no connection.” CDR’s are influenced by all sorts of things. Their own prejudices, their past, their commanders, their subordinates, and yes Congress too. So, if you have a reason to believe a CDR referred not because he or she believed the facts and evidence justified it, but because of some improper influence or bias, then attack it that way.
    Put another way, if you had evidence or a good faith basis that a CDR was a racist…and that he referred charges against an African-American accused due to that racism…would you try to make a UCI argument, or would you try something else? What would you do?

  57. k fischer says:

    I would try something else because racism does not pertain to UCI.  In inflexible disposition towards certain offenses is UCI.  So, if Congress passed a sense of Congress provision statement that all white men who are accused of an Article 120 offense should have their offense disposed of at a Court martial, and a black, racist commander ensured that all white men went to a court martial who were accused of a 120 offense, then that might be both UCI and a Due Process violation.  Without the Congressional provision, then all you would have is the due process violation.
    But, that is not what we have here.  Congress has stated that it is a sense of Congress that all Article 120 offenses should be disposed of by a court-martial.  So, let’s say you have a Convening Authority who refers to a Court-martial every allegation of Article 120 on his post.  And, even when the IO recommends a dismissal, he refers the case.  And, he has stated on the records that the reason he does so is because he is concerned that if he does not, then Claire McCaskill won’t confirm his promotion, or Kirsten Gillibrand will block his confirmation anonymously based on their previous actions.
    In that situation, Congress has caused the CA to have an inflexible disposition towards all 120 offenses, which is UCI.  So, while Congress has not committed UCI, their actions are still relevant to show that the CA has an inflexible disposition towards all Article 120 offenses. 
    This discussion reminds me of this scene from Joe vs. the Volcano:
    I know Congress can’t commit UCI, but can they cause UCI?  Stewie?  Yeah, Stewie.  Stewie, can Congress cause UCI?  Stewie, I know Congress can’t commit UCI, but can they cause UCI?  I’m not arguing that with you.  I’m not arguing that with you.  I’m not arguing that with you, Stewie!  Stewie, Stewie. Yeah Stewie, but can Congress cause UCI?  I know Congress can’t commit UCI, but can they cause UCI? Who said that?  I didn’t say that.  If I said that Congress can commit UCI, then I would have been wrong…Congress can cause UCI.  Who told you that? No, I told you that that!  Me!  (Well, me and the 3 judge panel in Simpson at footnote 24.)

  58. stewie says:

    Merely having an inflexible disposition is not UCI. You cannot UCI yourself.
    You can tell yourself the reason why you are alone on this is because other folks are too afraid just riding the system but maybe there’s another reason?

  59. k fischer says:

    Are you saying that a CA who exercises an inflexible disposition towards certain offenses is NOT committing UCI? 

  60. stewie says:

    UCI is straight from Article 37: it is about influencing others through threats or fears (or promises).  It is not about you personally having an inflexible disposition towards something. That’s why the words command influence are in there. If BG Snuffy just hates gingers…and he will always refer charges for any offense (but never says anything that causes someone else to prefer or think they have to take those offenses to trial because that WOULD be UCI) then he is not committing UCI just because he doesn’t like gingers.
    The problem here is you want to expand the definition of UCI beyond reason.  Why I don’t know. It’s not as if there are not alternate routes to raise the issue.

  61. Joseph Wilkinson says:

    Stewie – There is a related doctrine of “disqualification of the convening authority,” based on an inflexible attitude towards punishments.  So if a CA says, “all deserters should get punitive discharges, period,” he can be disqualified.
    In Army JAG School, this is taught as a type of UCI (and the one time I litigated it, that’s how the judge treated it; this was a while ago so I don’t have the case cites handy).  So K Fischer is not alone on that by any means.   In reality the doctrine has a different origin, but it is a thing and it is forbidden.

  62. Joseph Wilkinson says:

    (The links aren’t working for me right now, but if you google “The 10 Commandments of Unlawful Command Influence,” and my memory isn’t wholly shot, you’ll find it’s on the list.)

  63. k fischer says:

    Hmmmmm……After reading Treakle, I see that perhaps a CA would not be disqualified from referring the court-marital for having an inelastic attitude towards certain offenses himself because that is a prosecution function, not a quasi-judicial function. 

    We do not agree with appellant’s contention that a convening authority can be deprived of his statutory power to convene courts-martial and refer charges to trial based on lack of judicial temperament
    U.S. v. Treakle, 18 M.J. 646, 654 (A.C.M.R. 1984) aff’d, (C.M.A. Sept. 22, 1986)

    So, his inflexible attitude would have to come from someone subject to the UCMJ, which I would argue that the President is.  But, the argument between us is regarding whether Congress can CAUSE unlawful command influence.  So, indeed Sir, you are correct, that an inflexible disposition towards certain offenses is UCI for clemency purposes, BUT the CA could still hypothetically refer the case to a Court-martial even with an inflexible disposition towards offenses.
    HOWEVER, the game is still on, as I look to your brethren at TJAGSA who teach the ten Commandments of UCI.


    So, Commandment #3 is out (although, I think Punishment would still be in because clemency would be a quasi judicial function), but I think that Commandment #2 is where my argument now lies. 
    If the CA is concerned with his own career that he refers a weak Article 120 allegation to court-martial in order to ensure that he gets promoted if he is ever in front of McCaskill and to comply with the Sense of Congress provisions, as it would be Congress who has to confirm his promotion, then the CA would be a type 3 accuser and could not refer the court-martial to trial.  Therefore, the acts of Congress could cause UCI in that the CA would become a type 3 accuser who would not be permitted to refer the case.

  64. k fischer says:

    To put it another way, if the CA sent all Article 120 accusations to Court-martial, so the Accused could be dishonorably discharged per the President’s directive that influenced him to do so, then that would be UCI for an inflexible disposition because POTUS is subject to the Code in that Article 22 says he can convene a General Court-martial.  His inflexible policy on disposition or punishment was a product of a superior CA’s UCI.
    But, let’s say he doesn’t care what POTUS said or didn’t hear the statement by POTUS.  If the CA sent all Article 120 accusations to Court-martial, solely to comply with the sense of Congress provisions and placate McCaskill and Gillibrand if he is ever in front of them for a promotion, then it is UCI because he is a type 3 accuser and has a personal interest in the court-martial.  But, it is not because he has an inflexible policy on disposition for certain offenses influenced by someone subject to the UCMJ because Congress clearly is not subject to the UCMJ.  So, Congress can provide influence by making statements without it being UCI, statements which those subject could not make, but if a Convening Authority becomes concerned that they won’t be promoted if they do not comply with Congress’s wishes and acts accordingly, then Congress could cause them to commit UCI if the CA refer a case to protect their career.
    So, the President CAN COMMIT UCI because as a convening authority under Article 22 he is subject to the code.  His statements regarding an inflexible policy towards disposition and sentencing of allegations under Article 120 was UCI.
    Congress CANNOT COMMIT UCI, but Congress CAN CAUSE UCI if a CA has a personal interest in a court-martial, which is taking an action that will protect his own career.

  65. k fischer says:

    I guess I’m not alone. I have (1) JW, (2) the Judge JW was in front of for his motion, and (3) LTC Brookhart from TJAGSA.  You have (1) Burt Macklin and (2) Alfonso Decimo. 
    I win.

  66. Burt Macklin says:

    I was not advancing the debate one way or the other – I was just having some fun at the expense of our more defense minded brethren who play the “plum assignments” card whenever humanly possible.  I think we need to develop a corollary to Godwin’s Law:  “As a CAAFlog discussion grows longer, the probability of a reference to a prosecutor and/or senior officer receiving favorable career consideration approaches 1.”

  67. stewie says:

    I have Art 37 and case law. I win. Your argument that because…Congress…then…all CA have a personal interest in a court-martial…so UCI, no wait, accuser…well, if it were any thinner of a reed, it would be proof of String Theory.
    If, OTOH, you have specific evidence, that a specific CA referred a case not because he thought it was justified by PC, justice, etc but because he thought he had to or he would be kicked out then sure, you can raise that issue as an improper referral, which I believe is what I typed a couple dozen posts ago.

  68. k fischer says:

    I think I’m the only one who brought up Simpson, fn 24, so I have the case law and the TJAGSA training.  I win!  I just did a search for “improper referral” but nothing popped up by you a couple dozen posts ago.  I don’t think you said anything about an “improper referral.”  I think you made it perfectly clear that Congress cannot in any way, shape or form have any impact that would result in a Convening Authority committing UCI.
    This is what you did say:

    So the fact that commanders are afraid that Congress is looking at them is something that needs to be addressed, but it isn’t through calling every single SA referral UCI…because…Congress, and then using that argument to have a MJ effectively conduct his own 32/referral review. See Stewie.

    This is wrong under the 10 Commandments of UCI #2-The Command, if Accuser, cannot refer the case. 
    So, if a defense counsel believes that the only reason a case was referred was because of the pressure Congress has placed on Commanders to refer cases otherwise they don’t get promoted, then they should attempt to interview the Convening Authority by calling the SJA or the CoJ.  And when the SJA and CoJ tells the defense counsel to go pound sand, then the Defense counsel should file a motion to disqualify the CA for having a personal interest in the case, and put the CA on the witness list for the motions hearing.  This is what I did in my last case.  This is the way one should handle these issues when it appears that the Convening Authority was influenced in his actions through Congress and referred a bs case to court-martial in contravention of the IO’s recommendation to dismiss.  It is completely appropriate when you have a case that is such BS, the only logical explanation why it got referred is Congressional pressure made the CA think he wouldn’t get promoted unless it was referred.

    By the way, I think you just lost that SOB Burt Macklin, so you are down to (1) supporter.

  69. stewie says:

    August 25, 2015 at 9:20 PM
    “If you want, call a commander every single time and try and get them to say they didn’t refer the case for the proper reasons, and attempt to make an argument for improper preferral or referral if you want to make that argument. That at least would be within the realm of fitting into an actual law or legal principle.”

  70. k fischer says:

    No UCI in Congress,
    Just read your post. Quite depressing, but true, which is why it is quite depressing.  However, I think a Commander who refers a case to a GCM as an accuser commits UCI.

  71. k fischer says:

    Thanks.  I missed that. 
    Okay, so my argument would be that the referral is improper because of UCI in that the CA has a personal interest in referring the case to appease Congress which caused him to have a personal interest in the court-martial.  This is an actual legal principal trained by TJAGSA that an accuser cannot refer a case to trial (UCI Commandment #2,) and the CA would be a type 3 accuser under those circumstances.

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

    Maybe there should be a presumption of UCI for every sexual assault case referred to court-martial?  In every case where an Article 32 officer (JAG) has recommended NOT referring the case, there should be a presumption that the primary reason for the commander referring the case to trial is due to personal interest in maintaining his/her career, promotion, etc.  The Government will still have to disprove BRD, and will be required to provide more evidence than simply the commander testifying,” gee that didn’t cross my mind at all, I don’t care what Congress thinks, etc.”
    Back to the trial counsel at issue in Stellato, I totally agree the SJA and COJ are culpable and need to be held accountable too.  This disturbing thing about “let’s wait until closer to referral to provide discovery,” encourages gamesmanship.  But CPT Jones was ultimately the one responsible for “the box.”  He is the most culpable and should be disciplined the most.

  73. Phil Cave says:

    On the [trigger words] UCI.
    I think we have to triage the facts first.
    I think we are all smart enough to know the case which is going to trial, and should whether we want that for the client or not.  Even if the CA has said he hates all who do this there’s not going to be a UCI issue–sorry.  And with the new limitations on CA powers I’m not even sure she need be disqualified in acting post-trial.
    It’s a closer call if the PHO finds no PC (note, I am litigating this as a definitive finding not a recommendation, as I did under the old 32).  
    If the SJA agrees no PC, then you are in the park to consider UCI.
    I’m looking to see UCI in the training, policy put out, and all the other collateral matters that could adversely influence witnesses, especially defense helpful witnesses or character witnesses.  Which NCO wants to step up in support if they are called victim-blamers and other bad names.  Or there are the public statements, remember the Third Armor cases, or the calling out from formation.
    I don’t know if the members are being deliberately obtuse, but I’m hearing many saying they don’t remember or haven’t heard the Pres, it’s old news.  I think you stand more chance with the commanders making statements at training or meetings or in the local media about MSA around the time of the accused’s trial–the cynic says that’s a little too convenient, especially if the client’s case is used as an example.
    Kyle buddy, I’m not keeping count here, but I’m more in Stewie’s camp, I think.  Admire creative out of the box thinking, flying the edge and such, but I think your recommended surgery here kills the patient rather than treats the carcinoma.
    I do agree that the current attack on constitutional rights, fairness concepts that go back as far as Hammurabi and others, is being treated with age old blood-letting, of the clients.  And where it is false, blood-letting of the collateral victims such as the client’s spouse, client’s children, G&D, and real victims.  BTW, and of topic, is DoD keeping track of the falsely accused who suicide or consider it?

  74. J.M. says:

    Phil Cave:
    For your last question, based on my personal experience the answer is no. Honestly, my unit didn’t even pay lip service paid to ensuring that I didn’t hurt myself, with the exception of ONE home visit. “We hadn’t heard from you in a few days. CSM told me to come by and see if you killed yourself.” I won’t go into the lack of quality care that an accused can receive from Behavioral Health other then to mention that changing seats and pulling out the pepper spray/panic button, when your new patient sits down and tells you they were accused of rape, is not the best way to build a solid doctor patient relationship.
    Encourage your clients to tell their families, as early as they can. The support from my family is the only thing that kept me going during the year between accusation and charges being dismissed.

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

  76. Vulture says:

    T. A/K/A P.L.
    Political Command Climate.  Military Due Process.  At war for the purposes of…
    “I remember when the meaning of words began to change.” – Valerie.

  77. Concerned defender says:

    Foolish to think that Congress cannot commit UCI.  Congress wields incredible power over individual service members.  Congress can call in individual to the carpet, cause him/her to testify, and otherwise ruin/tarnish a career at minimum.  Perhaps more.  It would be a crime for a military officer to be disrespectful to a Congress member (UCMJ Article 88).  Sure a disagreement isn’t a crime, but this illustrates that Congress is in a psuedo Chain of Command role over at least Officers.  
    When was the last time anyone here personally experienced or even has awareness of a non sex assault which was recommended for dismissal by an Article 32 IO, yet the Commander was so passionate about it that it was referred??  I suspect that fact pattern is very rare indeed.  If the evidence isn’t there at the 32, non sex assaults overwhelmingly get kicked.  So there is SOME reason that these 120s and 125s are going to trial even with the 32 recommendations to dismiss (I’ve had several in my career).  So, what is that reason?  Clearly it’s UCI.  There just isn’t anything else that systematically sends these to trial. 

  78. k fischer says:

    CD,  I know it’s just a technicality bit the can’t commit ICI, but their actions can impact referral decisions thereby causing UCI.
    Phil, I’ve seen two of those findings of PC, bit recoomend dismissal because the alleged Vic is not credible and can’t be believed.  Never quite understood the calculus on that one, but I’ve seen the NMCCA attempt to explain it I’m US v Foster.  That would probably fit my definition of a weak case.  
    I agree that the new rules really cut clemency, so the inflexible attitude towards punishment will be a nonstarter for UCI from now on.  But, if a CA is worried about his career, then I think he becomes a type 3 Accuser.

  79. stewie says:

    Vulture, I stand verily vivified by the V for Vendetta reference even if I cannot vouchsafe that your comparison isn’t merely verisimilitude vice truth.

  80. Alfonso Decimo says:

    This horse isn’t dead yet. I think I saw it twitch. 

  81. stewie says:

    kf keeps trying to give it mouth-to-mouth.  #Bojackhorseman

  82. k fischer says:

    The transfer of this discussion from one post to the present post was kind of like Wanda’s mulch joke.

  83. Broken System says:

    The MJ in Garcia pooched it plain and simple. 
    I appeared in front of him a few times and it was no holds barred free for all.  Rules smules, the MREs or RCMs simply did not matter.

  84. Vulture says:

    Perhaps.  But often, once the terms of a discussion have been established, the outcome has been determined.  You are using mine.

  85. stewie says:

    Vulture, verily I voyage in vain, vexxed at understanding your vision.

  86. Vulture says:


  87. Vulture says:

    Stewie.  OK I’ll try.
    Victory often visits the volunteer of the verse and vocabulary.  They become the venquiliatrist while the vanquished voices only vaporings without verb.

  88. DCGoneGalt says:

    VTop vriting vike vhat, vlease.

  89. stewie says:


  90. k fischer says:

    You varging viceholes you vuined my varging vlog!  Vat the vack var you vacksticks valking avout?
    K Vischer

  91. Vulture says:

    KF.   I took a swipe at placement of political before command climate as changing the implications of command climate.     By taking the -command- out of Command Influence and sandwiching between -polical- and -climate- it dilutes the meaning of command in the UCMJ sphere.   Its an oft cited case that says that the mere spirit of command presence in the court-room is not UCI.  So maybe this is not by itself definitive.
    The term military due process is a construct that has come under question for it’s inclusion in the panoply of those seen as a contradiction in terms once the world military is added.  The idea of “at war for the purposes of …” is kind of a new one.  ACCA kind of went off the rails when they said “Just like the CMA in 1953 we look at…”   CMA said it in 1953, not 10 years later.  So I referenced a monolouge from a movie places the point of discussion in simliar viens.  Stewie disagrees with my drawing a parallel.

  92. Vulture says:


  93. DCGoneGalt says:

    This is like a dork version of the “Meow” game.

  94. stewie says:

    It’s like…Meowschwitz (Archer reference).

  95. k fischer says:

    So, you used a movie reference to illustrate your point about military justice? Inconceivable! 

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

    Anyone accused of sexual assault, a sex offense against a child, or any child porn offense, is pretty much guaranteed to have their case be referred to court-martial.  Not saying that’s right, in fact it’s not right.  Just looking at the reality of the situation.

  97. Vulture says:

    K Fisher.  Stewie an I were, then you said, “Stop saying that, and I mean it.”

  98. stewie says:

    It’s quiet…too quiet!

  99. K fischer says:
    Hey SVPs:
    Was the first time she reported arape that allegedly occurred six months before he broke up with her the day after he broke up with her?  It might be a false allegation.
    Did she late report that he held her down on the couch in his living room, but cannot describe what the inside of his house looks like, and he swears under oathe that she’s never been to his house?  It might be a false allegation.
    if there is a video of her screaming “@&$) me like a little s&$@!”  It might a false allegation.
     And by “might” I mean “is.”

  100. Vulture says:

    Stewie.  I would have to agree, particularly about this subject.  I still have not seen a story about this in any paper or news outlet.  Maybe the judge has a gag order on it.  When the opinion first came out I commented on the an article by the COJ and Galt pointed out that I got the name right.  The COJ’s name came up in a Law Review story but that is to say that he should have or did know what a TC was doing.  Just the same, if you look at the CAAF opinion, it looks like Cpt Jones got a trip to Afghanistan to take him out of the blast area.  Leaving his new born behind.  Classy.

  101. Scott says:

    Comment 101.  Air Assault.