Article 73 allows an accused convicted by a court-martial to petition for a new trial on the grounds of newly discovered evidence or fraud on the court. In a decision issued last week in Cook v. United States, Misc. Dkt. No. 2016-18 (link to slip op.), a three-judge panel of the Air Force CCA grants one such petition on the basis of newly discovered evidence.

Judge Speranza, writing for the unanimous panel, finds that the prosecution made an issue of whether the alleged victim would have consented to the alleged sexual act, rather than whether she did in fact consent. As a result:

newly found evidence regarding [the alleged victim’s] extramarital sexual relationship with [a paramour] would probably produce a substantially more favorable result for Petitioner in findings and, at the very least, sentencing. Moreover, evidence that [the alleged victim] engaged in an extramarital affair with [the paramour] discloses noncumulative impeachment evidence that is relevant not only to a material issue in the case, but the dispositive issue in Petitioner’s case — [the alleged victim’s] credibility.

Slip op. at 12 (emphases in original).

Master Sergeant (E-7) Cook was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of sexual assault in violation of Article 120(b). The members sentenced him to confinement for 18 months, reduction to E-1, total forfeitures, and a dishonorable discharge.

The alleged sexual assault was an encounter involving Cook, his girlfriend (an Air Force Technical Sergeant (E-6) identified in the opinion by the initials SB), and the alleged victim who was a female Technical Sergeant identified in the opinion by the initials LT. The encounter occurred in Cook’s car near a bar where they and others were drinking. Both Cook and SB were charged with offenses related to the encounter.

Cook’s trial was first, and he sought a grant of testimonial immunity for SB so that she could testify in his defense. Slip op. at 4. The convening authority denied the request. Cook’s defense counsel also learned about and tried to investigate “rumors that TSgt LT [the alleged victim] had an extramarital affair with Mr. PS [the paramour], a former Air Force member, while they were performing temporary duty.” Slip op. at 3. The defense team was, however, unable to find the paramour or corroborate the rumor. Then:

During the findings portion of Petitioner’s trial, TSgt LT testified that she would not have consented to the alleged sexual act due to her sexual past, her monogamous relationship with her husband, and the pain she experiences during vaginal intercourse due to a medical condition. At sentencing, TSgt LT testified about the impact Petitioner’s offense had on her relationship with her husband.

Slip op. at 4.

The testimony of the alleged victim during the prosecution case-in-chief included the following exchange during direct examination:

Q [prosecution]. Now we heard yesterday, [TSgt LT], that you fabricated this allegation in order to save your marriage. Is that true?

A [alleged victim]. That’s not true.

Q. Tell the members how you know that that is untrue.

A. I love my husband with all my heart. He’s my soul mate without him I wouldn’t be where I am today. Anything I’ve ever needed he has been there for. I’ve had sexual issues myself and he’s been there. Like I have medical issues and he has been there through all of it. He’s been by my side. I couldn’t ask for more supportive, more of a great father to my children. I have absolutely no reason no desire for anybody but my husband. He’s been the one that I wanted my entire life and he’s the one I have.

Slip op. at 6.

Cook was convicted and the prosecution shifted focus to his girlfriend. Three days later the paramour was found (by one of the other Airmen who was drinking with the alleged victim on the night in question, who forwarded the information to the girlfriend’s defense team). The girlfriend’s defense team put the paramour on their witness list. The prosecutors immediately notified Cook’s defense team of this development:

This morning we received the Defense witness list in US v [TSgt SB]. That list included a person the Government had never spoke with or heard of before. After speaking with him, he stated that back in 2006, while on TDY, he engaged in sexual intercourse with [TSgt LT]. I am providing you this information pursuant to Brady v. Maryland, and my continuing discovery obligation. If you have any questions, let me know. Here is his information- Mr. [PS], [. . .].

Slip op. at 4 (marks in original).

“Soon thereafter, TSgt LT signed a letter entitled ‘Victim Decision to Decline to Voluntarily Participate in the general court-martial against TSgt SB,’ [and t]he charges against TSgt SB were dismissed.” Slip op. at 4 (marks omitted).

In light of these post-trial developments Cook’s defense team asked the military judge to order a post-trial 39(a) session and grant Cook a new trial. The military judge ordered the session and the defense presented evidence that included testimony from the paramour that “he had a sexual relationship with [the alleged victim] that included several instances of vaginal intercourse and oral sex.” Slip op. at 5. The military judge heard the evidence but nevertheless denied Cook’s request for a new trial. Cook then renewed his petition with the Judge Advocate General of the Air Force, who referred it to the CCA in accordance with Article 73.

Judge Speranza explains that a petition for a new trial must meet a high burden to succeed:

A new trial shall not be granted on the grounds of newly discovered evidence unless the petition shows that:

(A) The evidence was discovered after the trial;

(B) The evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence; and

(C) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused.

R.C.M. 1210(f)(2); see United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011); United States v. Johnson, 61 M.J. 195, 198–99 (C.A.A.F. 2005).

“[R]equests for a new trial . . . are generally disfavored,” and are “granted only if a manifest injustice would result absent a new trial . . . based on prof-fered newly discovered evidence.” United States v. Hull, 70 M.J. 145, 152 (C.A.A.F. 2011) (quoting United States v Williams, 37 M.J. 352, 356 (C.M.A. 1993)).

Slip op. at 10-11 (marks in original). The most difficult part of this burden in Cook’s case is the requirement that the new evidence not be discoverable in the exercise of reasonable diligence during pretrial preparations. But the CCA concludes that the failure to discover the paramour is excusable given the nature of the charged offense:

The fact that trial defense counsel was only aware of these rumors and did not uncover any corroborating evidence was not due to a lack of due diligence. TSgt LT denied having affairs or any such a relationship in the pretrial interview with trial defense counsel. Her husband confirmed as much in his interview. Other witnesses who had contact information regarding Mr. PS decided, for whatever reason, not to disclose its existence to trial defense counsel prior to Petitioner’s trial. Moreover, the trial defense team was reasonably diligent in its efforts to locate a former military member who may have had an extramarital affair with the alleged victim of a sexual assault nine years previously. Given the nature of the charged offense—sexual assault when Petitioner knew or reasonably should have known TSgt LT was incapable of consenting due to impairment by alcohol intoxication—and the results of their interviews, trial defense counsel understandably focused on discerning how impaired TSgt LT was at the time of the alleged sexual act. Therefore, on the record before us, we find that trial defense counsel exercised the requisite due diligence in their attempts to corroborate a rumor of an old affair.

Slip op. at 11 (emphasis added).

Similar factors influence the CCA’s decision on the requirement that the new evidence have a probability of a substantially more favorable result had it been presented at trial:

In Petitioner’s trial, the Government sought to prove that TSgt LT would not have consented to the alleged sexual act because she never engaged in sexual relationships with anyone other than her husband and her medical conditions cause even consensual vaginal intercourse with her husband to be painful. Accordingly, in findings, TSgt LT’s consent to the alleged sexual act, or lack thereof, became a material matter for the members to consider when determining whether the Government had proven the elements of the charged offense beyond a reasonable doubt. The resolution of the issue of consent, like most of the material facts in Petitioner’s trial, rested squarely upon the credibility of TSgt LT. See Williams, 37 M.J. at 358. “Thus, in the absence of physical evidence and direct corroboration testimony, factors affecting [TSgt LT’s credibility] were clearly of critical importance.” Id.

The record before us establishes that the newly found evidence regarding TSgt LT’s extramarital sexual relationship with Mr. PS would probably produce a substantially more favorable result for Petitioner in findings and, at the very least, sentencing. Moreover, evidence that TSgt LT engaged in an extramarital affair with Mr. PS discloses noncumulative impeachment evidence that is relevant not only to a material issue in the case, but the dispositive issue in Petitioner’s case—TSgt LT’s credibility. Id. at 375. We also note that this newly discovered evidence may not only show that TSgt LT did, in fact, have an extramarital affair in direct contradiction to her previous statements and testimony, but that she may have been dishonest with detectives and trial defense counsel during her interviews, and concealed the affair from her husband, Government counsel, Government character witnesses, and a court-martial panel. See id. at 359. Considering the entire record before us, we conclude that this devastating evidence concerning TSgt LT’s credibility and the veracity of her testimony, if considered by Petitioner’s court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for Petitioner.

Slip op. at 12 (emphasis added).

The CCA sets aside the findings and sentence. Cook may (but probably won’t) be retried for the offense.

Cook also asserted that the alleged victim “committed a fraud upon the court by testifying [that she did not engage in an extramarital affair].” Slip op. at 10. The existence of a fraud on the court is an alternative way to win a new trial. Perjury may constitute a fraud on the court, however merely the occurrence of perjury is not enough to win a new trial. Rather, “no fraud on the court-martial warrants a new trial unless it had a substantial contributing effect on a finding of guilty or the sentence adjudged.” R.C.M. 1210(f)(3).

Having resolved Cook’s petition on the grounds of new evidence, the CCA does not address whether the alleged victim’s testimony was a fraud on the court.

50 Responses to “The Air Force CCA grants a petition for a new trial based on newly discovered evidence of an alleged sex assault victim’s sexual history”

  1. Terri Zimmermann says:

    Nice to see Brady is not completely dead. Good job, TC.

  2. AF Capt says:

    Yuuuge.  Kudos to Appellate Defense on the big win.

  3. Bill Cassara says:

    I have heard of these, but never actually seen one in the wild. Congrats to all.

  4. Lieber says:

    Good that the TC understood Brady.  Good on the defense for raising the issue.  On the other hand, it’s virtually always a mistake for prosecutors to portray the vics as saintly at trial…it leads to outcomes like this and it’s unnecessary. 

  5. stewie says:

    Lieber. I’ll push back a little. Saintly may indeed be too much, but a good TC at the end of the day has to present an alleged victim in as virtuous a light as possible to gain credibility, just like the DC has to present the alleged victim in as unvirtuous (I know, not a word) as possible to lessen it.
     
    Obviously in both cases there is a line, and risks. Of course, if she’d just told the TC the truth from the start, the TC would have known to avoid this, so the blame falls on her, not the TC.  If the AV was telling the truth, the strategy would have been just fine.

  6. Lieber says:

    Lieber’s Court-Martial Rule #1.  Everyone lies.
    Lieber’s Court-Martial Rule #2.  Everyone lies about sex.
    Lieber’s Court-Martial Rule #3.  There is always far more illicit sex going on than people think.
    Lieber’s Court-Martial Rule #4.  If you ever assume a witness or client is telling the truth about sex, you will be surprised.  If you assume they are lying, you will never be surprised.
    Lieber’s Court-Martial Rule #5.  The military is made up of prudes and swingers, in roughly equal proportions.
    As for the case at hand: I don’t know anything about it other than what’s in the summary at hand, but, married enlisted SM gets hammered with other enlisted SMs…any TC that puts on a case about her virtuousness is asking to be surprised.

  7. A Random JAG says:

    For all the castigating of prosecutors on this blog (and I’m as guilty of it as others), kudos to the TCs here who apparently immediately called the paramour and gave the Brady material to the Defense right away once they found out about it.
    And I agree with stewie:  you have to go with what the witness gives you.  The problem here wasn’t the TC, it was the witness covering up her affair.

  8. Zachary D Spilman says:

    You might be interested in my 2014 post titled The Bias of Blogging, A Random JAG

  9. k fischer says:

    Great job TC for the post trial Brady disclosure.  Great job, DC, for attempting to run down the paramour prior to trial.  Great job AFCCA for such a good opinion that can be applied in future cases where vic doesn’t tell spouse about previous affair and falsely accuses military guy of assault.
     
    Also, quite interesting, I find that the AF was also going after the female military participant in the ménage.  When I compare this case with the Marine case of US v. Maj Mark Thompson where the female got off scot free, only to engage in further acts of fraternization, I offer another hardy kudos to the AF TC in this case for exemplifying gender equality in their prosecutorial discretion. 
     
    I’m wondering if AFOSI felt a little hamstrung about pursuing the complaining witnesses motive to fabricate in this case because they were fearful of “victimizing the ‘victim'”.  It appears from the opinion that the perjurer in this case “was dishonest with detectives” about having a previous affair or having any marital problems, so they at least asked the question.  This case offers support a dedicated defense investigator because had TDS counsel been provided a dedicated defense investigator, then they might have discovered the existence of Mr. PS before trial.
     
    No kudos to the MJ who should have granted the petition for a new trial at the post trial 39(a), or to the Government’s efforts to oppose the motion and get him out of jail prior to this appeal.  I would have not opposed the motion.  Also, no kudos to Cook if he knew TSgt LT was married.  I’ve seen or read the opinions of too many Servicemembers who should have followed the advice given in Proverbs 7.
     
    Bill, I was fortunate to be involved as a second chair with a post trial 39(a) in a gang rape allegation where the vic was comatose due to alcohol consumption, and the only witness cut a deal for 5 years where he got 12.  After the client was convicted, the Government’s star witness on the way back to confinement told his escorts words to the effect of, “Yeah, I know it was pretty f**** up what I said, but I had to lie to get my deal.  He never touched her.”  Lead counsel argued a fine motion, the MJ took the hard right over the easy wrong and ordered a new trial and recused himself, then we got a new judge with whom we went judge alone.  First chair was on terminal leave, but returned solely to try this case.  Great guy, great JAG, and he shared a mutual dislike for the CoJ who has been named in a recent opinion.  And, I’m sure the Area Defense Counsel and Appellate DC are feeling good about this result.

  10. stewie says:

    Stewie’s addendums to Lieber’s Rules:
     
    1. Everyone lies…sometimes…about some things.
    2. See 1.
    3. Certainly true although the devil is in the details
    4. just like sexual predilections, there’s a much larger range than a binary A or B. Most folks are in the middle.
    5. See 4.

  11. Bionic Barry Dylan says:

    And there will be adverse consequences for TSgt LT, right?

  12. Bill Cassara says:

    Kyle:  You and I both had extensive experience with the now named trial counsel.

  13. Charlie Gittins says:

    Bill:  Here is one I picked up right after the trial — I didn’t try the case, but I was hired for the appeal before the ink was dry on the Findings Worksheet.  They granted new trial on both new evidence and fraud on the court. 
    http://afcca.law.af.mil/content/afcca_opinions/cp/perez-36110.pet.pdf

  14. k fischer says:

    Great job, Charlie!  Funny how the Government Appellate counsel conceded that one kid was lying, but wouldn’t concede that her sister who was still under the control of the Accused’s mother in law was lying, even though she and her named mother in law were not cooperating at the Dubay hearing.  This is somewhat similar to the TC in Cook who dropped the case against co-accused SB, but contested the DC’s motion for a new trial.
     
    When determining my critique of an attorney who represents the United States of America, I have always asked two questions: 1. If I were the prosecution, would I take the same action?  2.  If I were the Government counsel sitting in the Accused’s chair and the Government took the same action against me, then how outraged would I be about it? 
     
    In Cook, I would have conceded that Cook deserved a new trial and not contested DC’s motion.  And, if I were the TC sitting in the Accused’s chair and the Government took the same action against me, then I would be very outraged if I had to spend one day longer in jail than I had to because the Government contested the motion, particularly in light of the fact that they dismissed the charges against SB. 

  15. k fischer says:

    BBD,
     
    If by “adverse,” you mean “Cook gets a new trial,” then yes there will be, other Barry, yes there will be. 
     
    If by adverse, you mean something bad happening with regards to an administrative or criminal action, such as a letter of reprimand, or something else, no matter how minimal, to dissuade her from falsely accusing another person of rape to save the relationship with her husband which she absolutely cherishes, notwithstanding the adultery she lied about and committed on numerous and divers occasions, then, no, there won’t be any of that. 

  16. Annonymous says:

    I don’t see anywhere that TC was the one who disclosed this information to DC? I don’t think Brady was involved here… correct me if I’m wrong.

  17. k fischer says:

    It appears that TSgt MH who was one of TSgt LT’s friends during the “Lady’s night out” and was also an acquaintance of co-accused TSgt SB was able to contact Mr. PS three days after the trial for the upcoming trial against TSgt SB, and placed him on the Defense witness list.  Nine days after that, Government sent a Brady notice to Cook’s defense counsel who filed a motion for a new trial.  See Cook at Page 4.
     
    So, the Government in their opposition to DC’s motion called their paralegal who testified how easy it was to find the contact information for Mr. PS after it had been disclosed to them after the trial.  So, I guess they were arguing that the evidence was easy enough to find with reasonable diligence.  So, in that case wouldn’t the DC have been ineffective, then, for not finding this witness, and the accused still entitled to a new trial?
     
    Oh, and let’s not forget that Mrs. AA and her husband drove TSgt LT back to her house, Mrs. AA was upset with appellant who left with TSgt LT during the tryst, and Mrs. AA asked TSgt LT “if she was lying” when she said she “thought” they raped her.

  18. Former TC (You can call me sir) says:

    All you defense folks are giddy when someone gets off on a technicality.  I suggest you wear the yoke of representing the gov’t for a bit.  Might enlighten your perspective.

  19. Concerned Defender says:

    @ Former TC – well it’s far better than the giddy Trial Counsel who cheer when a heavy-handed government team of agents ruin a suspect’s reputation, lie/cheat/steal to achieve their investigation, tamper or lie about or ignore evidence to box in an accused, TCs cheer when corrupt practices are employed, government friendly Judges fail to be intellectually honest on motions or protect accused rights, and TCs cheer when an innocent Soldier’s life is ruined upon conviction for a non-offense…  I’ve personally experienced/seen ALL of these scenarios in my career. 

  20. A Random JAG says:

    Since when is the complaining witnesses perjuring herself at trial a “technicality?”  I would hope most TCs would be horrified if their star witness blatantly lied under oath.
    I know I would be.

  21. stewie says:

    I think someone doesn’t understand the meaning of the word “technicality.”

  22. Bionic Barry Dylan says:

    Another thought that crept into my mind this morning…I’d be curious to know what TSgt LT told her SVC and when.  Did TSgt LT’s SVC knowingly allow her client to perjure herself?  I certainly hope not.

  23. k fischer says:

    BBD,
     
    My intuition tells me that if TSgt LT lied to the detectives, defense counsel, her husband, her friends, the trial counsel, and panel members, then she lied to her SVC. 
     
    And, when Mr. PS was finally located and interviewed, my intuition tells me that her SVC wisely told her to not cooperate with the prosecution of TSgt SB.  But, I have a rather high opinion of the AF JAG Corps based on my personal experience, notwithstanding my reading of news about US v. Brandon Wright
     
    Former TC, as a prior enlisted, I will gladly call you “Sir.”  I, as probably most of the people in this string of comments, have worn the yoke of representing the United States of America, and through my representation, I believed that I also represented indirectly the rights of the Accused to not be convicted of a crime he did not commit because he, too, is part of this great United States of America.  You know, its kind of like the belief that a prosecutor’s job was not to obtain convictions, but to ensure that justice be done.  You ever heard that before, Sir?  My SJA told me that one time.  And, I was fortunate to have been mentored by three highly ethical individuals in my SJA, CoJ, and STC, so at that time I could not conceive how anyone would think that the military justice system could be corrupted because I thought that everyone in the Army JAG Corps had the same mindset. 
     
    But, I realized when I moved to TDS two years later after those individuals PCS’d that my perspective was not enlightened because I went up against an SJA, CoJ, and STC who seemed to me to be on the opposite end of the spectrum and how badly the system can be at a Post when you have that perfect storm.  And, the Army in it’s infinite wisdom appointed the CoJ and the STC to the positions of military judge at the height of Senator McCaskill and Gillibrand’s shrieking. 
     
    I think that defense counsel are giddy because a man should no longer be in jail for a crime he did not commit.  But, for all I know, Cook may still be in jail awaiting the AF’s appeal to C.A.A.F.  Anybody know Cook’s confinement status?  And, yes, there may be a bit of Shadenfreude by defense counsel that the Government’s star witness got caught in her lies.  With the system as it has become, it is quite difficult to catch any complaining witness making a false allegation in a lie.  So, this is quite the rare occasion and one to be celebrated.
     
    Sounds like you might need spend some time as a defense counsel to enlighten your perspective.  If you have been one, then I’d be interested in knowing the percentage of your clients who had the money to hire a CDC, then hired a CDC because they thought you were a Government shill who got paid no matter how long his clients went to jail.  But, my intuition tells me with your misguided use of the term “technicality” that you were a FLEP who wasn’t able to do any TDS time because you went to a TC slot, then to the grad course, then a COJ or SVP slot.  Heck, I bet you become a military judge one day.

  24. a. hernandez says:

    One of my times as CoJ, I got a call from one of my deployed TCs concerned that one of his Battalion Commanders wanted to court martial a soldier for what was basically a young E-3 following orders with an unexpected (and slightly embarrassing) result (told to ‘guard’ a pile of gravel until a contractor shows up to pick it up and wrong person did – claim was made and gravel owner paid).  Chain of command annoyed and wanted their pound of flesh.  I reminded him that contrary to garrison, where the cases and evidence make it to us, while deployed his responsibility to look out for the integrity of the process and justice to be done fairly increases.  It took some additional work behind the scenes so that the soldier would get counseled about common sense stuff but without additional disciplinary repercussions. 
    Here, I would have been upset about the lying complaining witness; all that work, unnecessarily wasted. 
    When I was a DC and SDC, I liked dealing with competent and ethical TCs and CoJ.  We could discuss a case and the merits of the evidence versus a possible deal without he or she being concerned I was trying to hide something (always an issue when the other side is inexperienced).  Ultimately, we could agree to disagree and go to trial. 
    An ethical or Constitutional violation that taints the process is not just a technicality – seeing it like that reduces the military justice system to an “us versus them” or “winning versus losing” equation, diminishing our roles as officers of the Court and in the case of those in uniform, members of the chain of command fulfilling their duties.  Congratulations to the TC (and CoJ and SJA) in providing the information in a timely manner.   

  25. Bionic Barry Dylan says:

    k fischer – if I were to wager on it, my guess is that you are correct about TSgt LT and her SVC.  I’ll save my opinion of the AFJAG Corps for another time.
     

  26. Respecttheauthoritie says:

    So now we are conscripting TCs to be helpers for the defense so that justice can be done?  No.  A TC’s job is to win.  Just as a DC’s job is to win.  When both are trying to win, justice gets done.

  27. Bill Cassara says:

    Kyle. A witness perjuring herself is a technicality. Get with the program.

  28. Capt. Harrison Byers (pseudonym) says:

    Are we really going to have to make the entire OSJA recite the following at PT after singing the Army song?  Because it seems that’s the only way to make people remember their ethical obligations based on some of these comments. 
    “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Stellato, 74 M.J. at 491 (quoting Berger v. US, 295 U.S. 78, 88 (1935)). 

  29. DCGoneGalt says:

    Respecttheauthoritie:  If by “helpers” you mean comply with discovery obligations, then yes.

  30. k fischer says:

    Respectheauthoritie,
     
    Well, in that case, I guess Mike Nifong was just trying to win when he indicted those innocent Duke Lacrosse players.  So, he must have been wrongfully disbarred.  Because the falsely accuseds’ attorneys did their jobs and got the charges dismissed, so everything worked out just fine.
     
    You do realize that Trial counsel have special responsibilities, correct?  For instance, the comment section to AR 27-26, paragraph 3.8 states:
    A trial counsel is not simply an advocate, but is responsible to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.
     
    If you are Air Force, then AFI 51-110, standard 3-1.2 says:
    As a trial counsel, the prosecutor represents both the United States and the interests of justice. The duty of the prosecutor is to seek justice, not merely to convict.
     
     
     
    The Supreme Court said in Berger v. United States, 295 U.S. 78, 88 (1935) “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”
     
    And if you are Navy, then comment section to JAG Instruction 5803.1E rule 3.8 is quite similar to the Army’s 27-26, rule 3.8.
     
    Accordingly, a trial counsel has the responsibility of administering justice and is not simply an advocate. This
    responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.
     
    Since this concept is not new, I can’t agree that we are “now” conscripting TC’s to be helpers for the defense so that justice can be done.  It’s always been that way in all the services rules for professional responsibility and under the Supreme Court’s jurisprudence.  That fact that you are woefully ignorant to think that this is some kind of out of left field responsibility made up by some poster on a blog is quite troubling.  If you have actually been a TC, then please self report to your SJA any cases where you felt the evidence was not sufficient, yet you got a conviction because the DC did not do it’s job.
     
    Waaaaiiiit a second! CD, are you playing a joke on me?  Nobody could be this clueless. Good one, Bromigo!
     
     

  31. Bionic Barry Dylan says:

    I’m sitting here hoping the comment that justice is done simply by TC trying to win (apparently even if that means engaging in wildly unethical conduct) is just a harmless prank by someone trying to get everyone riled up.  I wonder if Respectheauthoritie would be ok with going to jail himself/herself on perjured testimony…I mean, TC was just trying to win, right?

  32. k fischer says:

    A TC’s job is to win.  Just as a DC’s job is to win.  When both are trying to win, justice gets done.
     

    Are you trying to get innocent men convicted?  Because that’s how innocent men get convicted.  (By the way, is that philosophy being taught at the CLAC and OBC in Charlottesville?  Because that might explain some things I’ve been personally experiencing and/or hearing about lately within the Army.)
     
    I appreciate this discussion because I did not realize how thorough the AFI is and the high standard’s required of its prosecutors.  I think the other Services should follow suit considering all the protections being taken away by the annual amendment to the UCMJ, R.C.M. and M.R.E.
     
    Wish the Army had this rule: 
     
    (c) It is unprofessional conduct for a trial counsel intentionally to avoid pursuit of evidence because he or she believes it will damage the prosecution’s case or aid the accused.
     
    Or this one:
     
    (g) Unless a trial counsel is prepared to forgo impeachment of a witness by the trial counsel’s own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present the impeaching testimony, a trial counsel should avoid interviewing a prospective witness except in the presence of a third person.
     
    And this is good, too: 
     
    (a) A trial counsel ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but the trial counsel has an affirmative responsibility to investigate suspected criminal activity when it is not adequately dealt with by other agencies.
     
    Barry, this might be why I was so impressed with the AF in my two dealings with them.
     
     
     
     

  33. Howard Stern Talking To says:

    I don’t think Respecttheauthoritie’s comment is that off the mark.  He/she didn’t say anything about ethics, just that two zealous advocates trying to win their case is how justice gets done.  You know…an adversarial system.  That’s what this is all based on.  And there’s no denying that this defense-oriented blog tends to villainize the prosecutors.  It’s really kind of offensive to real defense attorneys.  Are military defense attorneys so feckless that they need special help from the prosecutors?  Just win, baby…just win.

  34. Vulture says:

    Most real defense attorney’s have strong stomachs and don’t really worry about it.

  35. k fischer says:

    Vulture and Howard Stern,
     
    Yeah, I guess “real” defense attorneys are pretty overjoyed when their clients are falsely accused and charges are preferred against them because that’s how “real” defense attorneys get hired. So, I guess I’m not a “real” defense attorney because the stakes are pretty high; I haven’t lost my breakfast before  trial in one of those cases, yet, so maybe my stomach is not that weak.  And, lately I only take cases after vetting my client, my client’s expectations, and whether I believe there is value added in hiring a CDC.  I wonder if I should disclose that I am a fake defense attorney.
     
    And I read this statement differently: “So now we are conscripting TCs to be helpers for the defense so that justice can be done?  No. ”
     
    When read in the light of the current mantra of “Believe the Victim” that permeates the training of military sexual assault advocates, SVP’s, SHARP, SAPRO, and LEO’s, then Respect’s statement could be read to indicate that when a vic makes a statement, it is the Defense’s job to disprove it and the Government’s job to believe it.  That’s the lense based on personal experience in some cases I have taken or have been detailed, through which I read the statement.
     
    But, I would posit that thoroughly investigating a claim of sexual assault is good for the United States of America, and therefore also the TC’s job, because it is counter to the best interests of the United States to allow an innocent person to face a Court-martial, or even be charged in some cases, for a crime he did not commit.  And, that is where I think the mindset I have inferred through this statement is dangerous and the antithesis to representing the United States. 
     
    I certainly don’t fault the TC in Cook for taking this case to trial based on what he or she had.  He or she didn’t know the vic was a liar, particularly where there were witnesses that were willing to testify under oath as to her veracity.  And, it sounds like she was asked some tough questions about whether or not she had cheated on her husband previously.  However, I do question the decision to oppose the motion for a new trial, but I am willing to assume that the TC had a good faith reason to do so.  I mean the Military Judge denied the motion, so it could not have been too out there, right?
     
    Also, this case reminds me of US v. Wilkerson where Wilkerson’s wife testified that her husband didn’t rape their houseguest because he would never cheat on her and they had a strong marriage.  Yet, a witness came forward that disproved that assertion.  By golly, if Col(R) Christensen had known of that juicy tidbit during his cross or during 1105 matters, then she would have been impeached so badly that Lt Gen Franklin might still be in the Air Force.  Same premise applies in the vic’s reason why she would have never consented in Cook.

  36. Wannabe Kenobe says:

    On the day that I see cases resulting in acquittals due to TC laziness/indifference, I will carry the mantle of “TCs should try to win.”  But on the days where innocent men are convicted because complaining witnesses perjures themselves, I will not carry that banner.  I will carry a different banner.

  37. DCGoneGalt says:

    Unless it’s an Army PT formation run, I ain’t carrying any banner.

  38. k fischer says:

    And how does one carry a mantle?  If it’s connected into the fireplace, you’d have to lift the house off of it’s foundation.  Unless, he meant “banner and mantle” in their metaphorical sense.
     
    So, what are the charges going to be for this military naked picture scandal?  I guess the surreptitiously taken photos and broadcasting of the same clearly fall under Article 120c. 
     
    But, what about the vast majority of the photos, which look like they were taken by the alleged vic in a naked selfie then broadcast?  Looks like we are going to see another amendment to the UCMJ to protect women from having their self-photographed naked images shared on social media.  Just like those women who binge drink then have illicit sex like the vic in Cook, then say they were too incapacitated to consent.  We have to protect them and focus our attention on the conduct of the idiot men who look at the pictures or take them up on their offer.  Patriarchy indeed. 
     

  39. Herbert Stock says:

    What happens now to Master Sergeant Cook – he’s probably completed hid gaol time, is an E-1, and suffered financial. Does he get reinstated, get back pay, be compensated for being in prison? If he isn’t retried, how is his career restarted, restored? It’s all very well that “justice is done”, what is required to have “justice be seen to be done”.

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

    Herbert,
     
    If he is still in confinement, he will be released.  He will receive back pay.  He will be restored to his rank and returned to active duty.  Basically he is put in the same position he was in at trial, an accused presumed to be innocent.  See Article 75, UCMJ.

  41. Herbert Stock says:

    Great – he’s been restored to duty and paid back pay but he’s still two years behind his peers in training, skills and experience – and probably harmed psychologically. Would any command want him? So back to the question; how is he made whole?

  42. stewie says:

    What would you suggest be done in addition to returning him to his prior rank and paying him back pay?

  43. K fischer says:

    If he missed a promotion from when he first flagged at the start of the investigation, then presumption that he should have promoted to E8.  Create a False Allegation Prevention and Response Office (FAPRO), and put him in charge with a $20 million budget, since 8% of allegations are on the high end false, according to the FBI.  Maybe he can train other Soldiers how to avoid false allegations.
     
    Then, when he retires, he should get a presumption of 70% disability for MFAT (Military False Allegation Trauma) for the PTSD he suffered and continues to suffer from the trial and wrongful imprisonment, which qualifies him for CRDP.
     
    Oh, and prosecuting TSgt LT for perjury would probably help him regain a little confidence in the UCMJ.

  44. Herbert Stock says:

    Good ideas – but how about including action against the military judge who denied Cook’s request for a new trial. Evidence of perjury should have alerted the MJ that there were issues that made the verdict unsafe. Perhaps Newton’s third law should be incorporated in the UCMJ.
    An E-7 is a very valuable and costly asset not to be discarded so lightly.

  45. Isaac Kennen says:

    Good ideas – but how about including action against the military judge who denied Cook’s request for a new trial.

     
    A judge who can be sanctioned for a ruling favoring the government can also be sanctioned for a ruling favoring the accused.  Given the power imbalance between the accused and the government, allowing judges to be sanctioned for their rulings is a protocol that will yield diminishing returns for those who are accused in the military justice system.
     
    The best way to bolster the reliability of trial level rulings is to take actions that increase, rather than decrease, judicial independence.  Rather than calling for the judge to be held accountable, a better approach would be to call for him or her to be made more independent.  The traditional way of increasing judicial independence is to make judges serve for fixed terms, make their budgets independent, and curtail the power of the executive branch to remove them.  Those are the actions which would better achieve the objective of increasing the reliability of trial-level judicial decisions in courts-martial.  

  46. Lieber says:

    I’d suggest taking a look at Article 75, UCMJ, and U.S. v. Dock, 46 F.3d 1083.

  47. stewie says:

    Dock only gets you so far. If it’s a rehearing for example, Finance will NOT pay your accused until there is a final decision. Even though the accused is supposed to be placed back where they were before conviction.

  48. k fischer says:

    Stewie,
     
    I think Lieber might have intended to be a Debbie Downer in his post…..Waah  (C), Waaaaaaahhh (F below middle C).

  49. Lieber says:

    fischer and stewie are correct. 

  50. stewie says:

    Feline AIDS is the number one killer of domestic cats.