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.

14 Responses to “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”

  1. stewie says:

    What am I missing. I don’t read this decision as saying the problem is the PHO’s conclusions but that the evidence wasn’t presented at the 32.
    “The parties agree that no direct evidence was presented at the preliminary hearing concerning the last two of the four statements allegedly made by the accused to CM; these statements are not found in either the CGIS memo or the electronic messenger transcript. The Government argues instead that the “PHO report contains circumstantial evidence that the accused also made the other two listed statements because he habitually made statements like them to other people.”
     
    So that right there tells me the Gov came with some really weak, if any, evidence at the 32, and treated it like the 32 was a mere formality.
    “The military judge’s finding that no evidence as to these statements was presented at the preliminary hearing is not clearly erroneous.”
     
    This has nothing to do with disagreeing with the PHO, this has to do with no evidence being presented on the record at the 32 to establish PC.  That the PHO got it right is irrelevant.
     
     

  2. stewie says:

    Alibi: I did just now notice your last sentence. I thought you were linking Mercier to your last full para, but I obviously misread, so ignore all last.

  3. Concerned Defender says:

    Should be a way to retroactively negatively amend an officer’s OER when events like this are learned of far down the road and many assignments later.  Perhaps when this surfaces their current OER takes a hit.  On top of that, once again we see that the children are given law degrees and lots of unfettered power.  No adult supervision.  Time and again these shockingly unreasonable actions are pursued.   I’ve got one currently on appeal where the first Art 32 resulted in a “no bill” on all specs.  So the CA held a new ART 32 on the same evidence and specs.  There was a nobill on spec 2 and the TC admitted zero evidence to meet spec 3.  Ignored by the CA, all 3 specs went trial.  MJ rejected our motions to dismiss.  Client (wrongly) convicted on 1 and 3, and acquitted on 2.  Note, zero reviewing bodies believed there was evidence to support spec 2.  And no evidence was ever presented for the terminal element of spec 3.  Terribly unjust in my view.  
    Per above, “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. ”   Yes, I fully agree.  

  4. TC says:

    CD,
    You’re always calling for careers to be negatively impacted, maybe your OER should reflect your inability to get an acquittal in a case where there was no probable cause and the government failed to put on any evidence of one of the elements.  Reeks of bad lawyering.

  5. Zachary D Spilman says:

    I LOLd

  6. Concerned Defender says:

    To respond to TC’s absurdity (and ad hominum attack), if a defense lawyer failed to raise issues, attack the lack of evidence, file motions, etc., or effectively defend a case where such nonsense was brought, it’s called Ineffective Assistance of Counsel (IAC).  Complaints and grievances can be filed and a lawyer can lose his license or be sanctioned.  The fact you don’t understand or know this is troubling.  
    To address your silly attack, in addition to not guilty findings, I’ve done better than acquittals having averted charges prior to and even following Article 32s.  If you’re at trial, you’ve already lost key battles.  Much harder these days in the current political climate; but if you’re SIDING with the preferral and referral of criminal charges on no evidence, you should lose your law license.  I would at least set the record for appeal where such stupid charges are brought, as I have routinely done. 
    As a defense lawyer, my actions are largely reactive to the moves of the prosecution.  The prosecutors are in the drivers seat, and there are few professions that require a larger level of adult responsibility and scrutiny that preferring and referring criminal charges.  Your comment shows me you don’t have that level of keen intellect and have NO business prosecuting cases, as your moniker suggests.  
    Yes, prosecutors bringing criminal charges is professional misconduct in violation of a host of serious ethical obligations of the profession.  That’s different than losing a fair case.  Bring garbage cases and you should be sanctioned.  Your bias if you disagree. Again, if you can’t see the distinction, go back to law school or quit this noble profession because you are the example of why people hate lawyers.  I’m not afraid of advising a client to go after an SJA’s and TC’s law licenses in such an instance.  If you’re making decisions on criminal charges, you better have your ducks in a row and not take it lightly.  
     

  7. Philip Cave says:

    Time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?
    https://www.justice.gov/usam/title-9-criminal
    And perhaps time to adopt Rule 5.1, Fed. R. Crim. Pro., either by statute or executive order?  I think the Prez could make this a requirement under R.C.M. 405, through the UCMJ art. 36 power.
    https://www.law.cornell.edu/rules/frcrmp/rule_5.1
     

  8. Zachary D Spilman says:

    I’ve written about the Principles of Federal Prosecution before, Phil Cave (such as in the Quantico DUI cases). But with the commander occupying the traditional role of convening authority, good leadership is all we need to keep bad cases out of the courtroom. 

    As for the federal preliminary hearing, I think that’s a different beast entirely, considering the non-applicability of the grand jury clause to military justice and the fact that an Article 32 preliminary hearing goes far beyond a mere finding of probable cause. As I wrote in this post

    There’s a important commonality between [the current and former] statutory purposes of an Article 32: Both involve a recommendation as to the disposition that should be made of the case. This is a far greater purpose than a mere probable cause determination (such as that made by a grand jury). Convening authorities have a wide range of options to address allegations of misconduct by military personnel, from mere informal counseling (i.e., getting chewed-out) all the way up to trial by general court-martial, and the Article 32 process is an important part of a convening authority’s decision-making process. While civilian prosecutors may pursue alternatives to prosecution (such as the federal pretrial diversion), there is no clear analogue to the wide range of options available to a convening authority, and no civilian probable cause determination is as broad as either the [former] or [current] Article 32.

  9. Philip Cave says:

    But with the commander occupying the traditional role of convening authority

    Well, in the 1980’s we would on occasion use the USAM guidance to convince commanders not to prosecute bad cases.  It was useful to have this as support for not prosecuting a case and taking alternative discipline action or none at all.  It can at times add meat to the argument coming from a mere junior lawyer or defense counsel.

    As for the federal preliminary hearing, I think that’s a different beast entirely

    Not really.  True.  The magistrate judge isn’t required to make an on the record recommendation about what to do with the case for which there is probable cause–might be something to do with separation of powers and judicial ethics.  But so what, that lack of a requirement is a red herring.  The difference is that in the military, the PHO does get to recommend what to do with allegations for which there is or are probable cause, is  what the law and practice should be.

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

    Defense attorneys should object to the AV’s written statement being considered by the PHO because under R.C.M. 405i(3), the PHO may consider statements that the PHO considers reliable.  The PHO has discretion to consider statements if they are considered reliable.  Which means the PHO must disregard statements considered unreliable.  An AV’s written statement, in the absence of video and/or audio, is inherently unreliable (I would argue) because the order in which events are presented in the written statement (chronologically) are not presented during the interview preceding the statement.  The written statement is incomplete b/c it doesn’t contain everything discussed during the interview.  The AV can refuse to testify at the Article 32.  No testimony and no written statement = no evidence for PC = no referral under Mercier due to lack of evidence presented at Article 32.  Worth a shot.

  11. stewie says:

    Sure Tami, it’s an argument and DC can make it, but even as I hate the new 32 process with a blinding white-hot passion, I don’t think objectively you can make the argument that a written statement alone is per se inherently unreliable. And I don’t think it gets you a Mercier result if the statement were introduced at the 32 (even if the PHO ultimately declared it “unreliable.”).  Because now you have evidence introduced, and I think that will be enough for the courts.

  12. Christian Deichert says:

    Back in the old Article 32 investigation days, I defended a case that included a rape charge.  My E7 client was accused of raping an E4.  The CID interview with the E4 witness contained a description of their consensual sexual encounter and included the following Q&A:
     
    Q: Do you think you were raped?
     
    A: Honestly, no.
     
    Both the TC and the OJ opined that rape was not supported by probable cause.  So I was naturally confused when the charge sheet included a rape charge.  I fought it at the 32, the IO recommended dismissal, and it was in fact dismissed prior to trial, but that particular opine/charging disparity stuck in my craw, big time.

  13. Where we're going, we don't need evidence... says:

    This case is a pretty clear illustration of how many Gov attorney’s seem to regard the 32 process these days. Check in the box.

  14. Concerned Defender says:

    Back in the old Article 32 investigation days, I defended a case that included a rape charge.  My E7 client was accused of raping an E4.  The CID interview with the E4 witness contained a description of their consensual sexual encounter and included the following Q&A: Q: Do you think you were raped? A: Honestly, no. Both the TC and the OJ opined that rape was not supported by probable cause.  So I was naturally confused when the charge sheet included a rape charge.  I fought it at the 32, the IO recommended dismissal, and it was in fact dismissed prior to trial, but that particular opine/charging disparity stuck in my craw, big time.

    Thank you for sharing this insight.  I’ve had numerous similar situations where valuable case-altering exonerating information was discovered during the Article 32 – as is should be.  In some cases charges dismissed.  Yet shockingly in another case with similar “non-victim” admissions, the SJA and TC still went forward.  It was unreal, like living in fantasy land.  
    To say that a “victim” is too fragile or should not participate is a terrible change, motiviated by unscrupulous individuals and the “victim” big business of millions of dollars and power.  Sadly, the wrongly accused often go to prison.  This is unconscionable for any honest broker with a law license, on either side of the aisle or fence.  Nobody should want an innocent man to go to prison, but that’s the system we’ve created. 
    In your example, that same Article 32 would not have included that exonerating statement and by the time of trial that “victim” may have been coached to not give that answer, and your innocent client’s life ruined.