The CGCCA concludes that the Government must present at least some evidence to support a finding of probable cause at an Article 32 preliminary hearing
In United States v. Mercier, 75 M.J. 643, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (link to slip op.), a three-judge panel of the court denies a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.
The specification at issue alleges a violation of Article 134 by communicating certain indecent language to a civilian woman. The woman did not participate in the Article 32 preliminary hearing, and the preliminary hearing officer’s report concluded that there was no probable cause to believe that the accused communicated the language because of the lack of evidence. Nevertheless, the convening authority’s staff judge advocate recommended referral of the charge on the basis that “the specification is supported by the expected testimony of Ms. C.M.” Slip op. at 2.
The specification was referred to a general court-martial, the accused objected, and the military judge agreed:
On November 25, 2015, the defense moved to dismiss Specification 6 of Charge II, arguing that (1) since no probable cause existed to support Charge II, specification 6, referral to a general court-martial violated the accused’s right to due process; and (2) that the Article 34 advice was misleading in that it stated that the charges were “warranted by the evidence indicated in [the PHO’s report].” A hearing on the defense’s motion was held on 14 December 2015. The military judge granted the defense’s motion on January 5, 2016, dismissing Specification 6 of Charge II. The military judge also held that “even if a determination by the PHO that probable cause exists is not a necessary precondition to referral to a GCM . . . to the extent the Article 34 advice relied on evidence not before the PHO, it is defective.”
Slip op. at 3 (omission in original).
Judge Judge, writing for the CCA, addresses only the military judge’s conclusion that the staff judge advocate’s advice was defective because it relied on expected testimony that was not part of the preliminary hearing report, concluding that “the Article 34 advice was therefore defective.” Slip op. at 5.
This conclusion involves two significant holdings.
First, the CCA holds that a preliminary hearing is defective as to a particular specification if the Government provides no evidence to support that specification:
[T]he failure to present any such evidence means that the preliminary hearing was not in substantial compliance with Article 32 and R.C.M. 405 with regard to Specification 6 (“no charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing in substantial compliance with this rule.” R.C.M. 405(a).) To substantially comply with R.C.M. 405, the Government must present at least some evidence from which the PHO could find probable cause in support of each specification. A preliminary hearing at which no evidence is presented as to a specification is not in substantial compliance with R.C.M. 405 because it cannot fulfill one of the purposes of the preliminary hearing: to determine if there is probable cause to believe that an offense was committed and the accused committed the offense. Id. If the accused timely objects, a specification cannot be referred to general court-martial without substantial compliance with Article 32 and R.C.M. 405, regardless of the PHO’s or the SJA’s determination regarding probable cause.
Slip op. at 4.
Second, the CCA concludes that the Article 34 prerequisite of a staff judge advocate’s advice supporting referral to a general court-martial includes a requirement that the evidence relied upon was actually presented to the preliminary hearing officer:
[B]ecause no evidence was presented as to the statements at issue, the PHO’s report contained no evidence as to these statements. Consequently, this specification could not be properly referred to the court-martial because no specification may be referred to a general court-martial unless the Staff Judge Advocate advises the Convening Authority that the specification is warranted by the evidence in the PHO’s report, and such evidence was in fact presented to the PHO. Article 34(a)(2). The Staff Judge Advocate’s reference to CM’s expected testimony does not cure this defect since the expected testimony was not presented at the preliminary hearing. The Article 34 advice was therefore defective
Slip op. at 5. A footnote adds that “while the SJA may disagree with the PHO’s determination as to probable cause, it will be to no avail if there has not been substantial compliance with the requirement to present some evidence at the preliminary hearing from which probable cause could be found.” Slip op. at 5 n.5.
Article 34 is a significant limitation on the power of a convening authority to refer a case to a general court-martial. Article 34 states:
Article 34. Advice of staff judge advocate and reference for trial
(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that—
(1) the specification alleges an offense under this chapter;
(2) the specification is warranted by the evidence indicated in the report of a preliminary hearing under section 832 of this title (article 32) (if there is such a report); and
(3) a court-martial would have jurisdiction over the accused and the offense.
(b) The advice of the staff judge advocate under subsection (a) with respect to a specification under a charge shall include a written and signed statement by the staff judge advocate—
(1) expressing his conclusions with respect to each matter set forth in subsection (a); and
(2) recommending action that the convening authority take regarding the specification.
If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification.
(c) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, may be made.
The requirement under Article 34(a)(2) to determine whether the specification is warranted by the evidence is an unambiguous grant of discretion to make a conclusion about the strength of the case, and to bind the convening authority with that conclusion (to a certain degree; the specification could still be referred to a special court-martial even if the staff judge advocate finds it unwarranted). This discretion allows a staff judge advocate nearly-plenary authority to prevent referral of a specification to a general court-martial. I previously referred to it as a lawyer’s veto and I also used it to illustrate why proposals to give military lawyers the referral power are a bad idea.
Supporting referral, however, requires that a staff judge advocate make explicit findings, and the Coast Guard CCA’s opinion in Mercier expands the required findings to include that the evidence supporting the specification “was in fact presented to the PHO.” Slip op. at 5. While I think this expansion is good policy, I don’t think it’s required by the statutory text. Article 34(a)(2) demands only that:
the specification is warranted by the evidence indicated in the report of a preliminary hearing
(emphasis added). By requiring only that the evidence be indicated in the report, and not that it be explicitly presented during the Article 32 proceeding, Congress did not go as far as the Coast Guard CCA seems to go with its decision in Mercier.
The requirement of substantial compliance with R.C.M. 405, however, is different, as it implies more than mere compliance-in-fact. R.C.M. 405(a) notes that:
A preliminary hearing conducted under this rule is not intended to serve as a means of discovery and will be limited to an examination of those issues necessary to determine whether there is probable cause to conclude that an offense or offenses have been committed and whether the accused committed it; to determine whether a court-martial would have jurisdiction over the offense(s) and the accused; to consider the form of the charge(s); and to recommend the disposition that should be made of the charge(s).
The prosecution’s failure to clear this low bar in Mercier, and the staff judge advocate’s unwillingness to support the preliminary hearing officer’s conclusion about the absence of evidence to support probable cause, reek of bad lawyering. The staff judge advocate’s advice relied on “the expected testimony of Ms. C.M.,” slip op. at 2, but it’s unclear how the staff judge advocate reached such an expectation (Ouija board, perhaps, or maybe a crystal ball). Articles 32 and 34 don’t require much, but they require more than the seemingly lackadaisical presentation by the Government in this case. Accordingly, it’s hard to disagree with the conclusions of the military judge and the CCA.
Notably, the CCA’s decision avoids a Government effort to obtain a broader ruling about the purpose and scope of an Article 32 preliminary hearing:
The Government appeals the military judge’s dismissal of Specification 6 of Charge II, asserting the following contentions:
A. The plain language of Articles 32 and 34 is unambiguous: preliminary hearing officers are to write a report that addresses the purposes of the preliminary hearing; they do not have the power to dismiss charges through the report’s assessment of probable cause.
B. Although a reading of Article 32 and 34 is sufficient to determine that the statutes are clear and consistent in providing that the PHO’s determinations are advisory, an examination of legislative history also supports that conclusion.
C. The accused has no due process right to a binding determination by the PHO.
D. Charge II, Specification 6 should not have been dismissed for improper referral; because the Article 34 advice is not defective or misleading in any way.
Slip op. at 1-2. I’ve seen varied arguments that an Article 32 report that finds no probable cause is binding on a staff judge advocate. I don’t find the arguments persuasive. Article 34 binds (to some degree) a staff judge advocate to the record created by the Article 32 process, but nothing prevents a staff judge advocate from disagreeing with the Article 32 officer’s conclusions about the strength of the evidence actually presented.
The CCA’s decision in Mercier, however, turns on the absence of evidence.