On Friday CAAF granted review in a Coast Guard case:

No. 16-0336/CG. U.S. v. Omar M. Gomez. CCA 1394. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING TWO COMPLAINING WITNESSES TO TESTIFY ON SENTENCING THAT APPELLANT WAS RESPONSIBLE FOR THEIR PREGNANCY COMPLICATIONS WITH NO EVIDENCE CONNECTING HIS MISCONDUCT TO THE COMPLICATIONS.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that:

In the presentencing phase of the court-martial, trial counsel asked M.S. about stress from the trial process and if stress had impacted her pregnancy. In response, M.S. testified that she had been pregnant with twins and that one of the twins “didn’t make it.” Then, addressing the stress from the trial process, she testified that she was worried about the effects of stress on the remaining baby inside her and hoping she could protect her baby from any effects of her stress.

S.W., testifying about impacts of Appellant’s offenses on her life, stated that “it’s hard to see my baby, because he was born premature.” Asked by trial counsel if she believed that stress had something to do with that, she stated she was diagnosed with pre-eclampsia, and that the condition is brought on by stress. Asked if the trial process had caused her stress, she agreed that it had.

Defense counsel did not object to this testimony, and did not have any cross-examination for either witness. In his sentencing argument, trial counsel did not bring up the testimony about the pregnancies of M.S. and S.W. except to briefly argue that Appellant had not apologized for causing stress during M.S.’s pregnancy.

Slip op. at 9. The CCA concluded that “in the absence of objection, we cannot conclude that the admission of this evidence was plain or obvious error.” Slip op. at 10.

12 Responses to “CAAF grants review of sentencing evidence issue”

  1. President Comacho says:

    If “trained” and licensed Trial Counsel repeatedly screw this up – then why do we think for a second the spillover instruction would work.  So the Defense motions to sever b/c 20 charges isn’t looking so good in front of a panel (I would never go in front of a panel in this case)- as in every other motion to sever ever filed, the motion is denied b/c the MJ decides that the spillover instruction and the military’s pathetic version of voir dire will work to cure the issue – and then Trial Counsel goes on to argue exactly what the Defense has concerns about.  And the MJ doesn’t sua sponte stop him.  
    Trial Counsel then sets this case up for appeal by asking the witness, not if she has nightmares or anxiety or is scared of men bc of the crime committed against her, no Trial Counsel asked her if her dead child is a result of the Accused’s court-martial forcing her to go through a trial – doesn’t a voice in the back of your head say “maybe I should ask around and do some research before I elicit this type of testimony”.  I am sure the accused would be fine with not being court-martialed and saving the witness from the stress
    At what point does a mistrial occur?
     

  2. Bill Cassara says:

    And the defense counsel sits on their hands. 

  3. stewie says:

    Plenty of blame to go around. Hard to believe there was not one adult on the gov side who said, yeah, don’t ask that question, unless no one bothered to vet the TC’s questions.  Then the DC not objecting, and then the MJ not doing anything.  Pretty much the fail trifecta.

  4. k fischer says:

    I was telling war stories to a young defense counsel just out of law school with whom I worked the other day.  She responded, “The application of the Constitution to Servicemembers was real?”
     
    I said, “I used to wonder that myself. Thought it was a bunch of mumbo-jumbo-magical power holding together with good order and discipline and special protections to the accused and how both systems are supposed to work together to provide a just result.  Crazy thing is, it’s true. The burden of proof, confrontation of accuser, beyond a reasonable doubt, Unlawful Command influence, and right to a fair trial, all of it. It’s all true.”
     
    No wait.  Star Wars.  I was watching Star Wars…….

  5. Concerned Defender says:

    Plenty of blame to go around. Hard to believe there was not one adult on the gov side who said, yeah, don’t ask that question, unless no one bothered to vet the TC’s questions.  Then the DC not objecting, and then the MJ not doing anything.  Pretty much the fail trifecta.

     
    Lots of people asleep at the wheel on this one.  

  6. Advocaat says:

    It’s not plain error to impute the stress caused by constitutional protections (i.e., the trial process) to the accused?  Boo.  Hiss.

  7. stewie says:

    Not to blame the CG, but I’ve seen many a young TC try this argument in Army court-rooms in my time, and I’ve never seen the MJ not quickly shut that down, usually before the DC can say -jection.

  8. Philip Cave says:

    Asked if the trial process had caused her stress, she agreed that it had.
     

    I’m sure the DC and MJ appreciated the improper comment on Appellant’s right to a trial and due process–especially because it was elicited by TC.  What I don’t get is why that’s not plain error.

  9. That Guy says:

    “she stated she was diagnosed with pre-eclampsia, and that the condition is brought on by stress. Asked if the trial process had caused her stress, she agreed that it had.”
    The Mayo Clinic states:
    Preeclampsia is a pregnancy complication characterized by high blood pressure and signs of damage to another organ system, often the kidneys. Preeclampsia usually begins after 20 weeks of pregnancy in a woman whose blood pressure had been normal. Even a slight rise Even a slight rise in blood pressure may be a sign of preeclampsia.
    Left untreated, preeclampsia can lead to serious — even fatal — complications for both you and your baby. If you have preeclampsia, the only cure is delivery of your baby.
    The exact cause of preeclampsia is unknown. Experts believe it begins in the placenta — the organ that nourishes the fetus throughout pregnancy. Early in pregnancy, new blood vessels develop and evolve to efficiently send blood to the placenta. In women with preeclampsia, these blood vessels don’t seem to develop properly. They’re narrower than normal blood vessels and react differently to hormonal signaling, which limits the amount of blood that can flow through them.
    Causes of this abnormal development may include:

    Insufficient blood flow to the uterus
    Damage to the blood vessels
    A problem with the immune system
    Certain genes

    Other high blood pressure disorders during pregnancyhttp://www.mayoclinic.org/diseases-conditions/preeclampsia/basics/definition/con-20031644
    Obviously, the accused is to blame when modern medicine does not know what causes this condition.
    I won’t even get into “it’s hard to see my baby, because he was born premature.”  Really?! really? You….[the Comment Policy will keep me from writing more]……..

  10. k fischer says:

    I had a client who was convicted of raping a woman he met on plentyoffish.com.  At the trial seven months later, she was four months pregnant and testified that she was so afraid she kept her doors locked, couldn’t trust men, she was afraid to leave her house, her three year old daughter was more clingy and afraid to leave her side and go to sleep.  She was impregnated by another Soldier in his Ford Explorer behind the China Wok on Ft. Benning a few months after she says my client raped her.  And, she met this baby daddy on Plentyoffish.com.   Yeah….her lifestyle really changed…….. 

  11. President Comacho says:

    I know the Fort Benning China Wok brings out the romantic side of me every time.  Hard to resist the temptation.  
    It will be the 14 month anniversary of that night I found true love.  It was while I was smoothing my mustache at China Wok, Fort Benning – I laid eyes on the prettiest little thing wearing her proud Army wife t-shirt and munching on some noodles.  While seductively munching on an egg roll, I asked her “hey hot cakes, how about you and me head out back to my Dodge Neon and I’ll show you my tattoo of my AIT platoon graduation date – Go Big Dawgs” – the rest was history.  Today we are happily married with 7 children.  3 from her first marriage, one from her second marriage, 1 foster kid b/c we need the money, her cousin’s kid until he gets released and one kid we made that night at the China Wok.
     

  12. LLOD says:

    As far as the commenting on a constitutional right argument, doesn’t  United States v. Stephens, 67 M.J. 233 eviscerate that complaint?