Argument Preview: CAAF considers an 18 year delay and the death of a witness in United States v. Mangahas, No. 17-0434/AF
CAAF will hear oral argument in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page), on Wednesday, October 11, 2017, at 9:30 a.m. Mangahas is a lieutenant colonel in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. However, she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.
The passage of so much time prompted a defense motion to dismiss based on violation of Mangahas’ Fifth Amendment (due process) right to a speedy trial. The Due Process Clause of the Fifth Amendment applies to egregious or intentional tactical pretrial delay by the prosecution where there is actual prejudice to the accused. See United States v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995). This is a difficult burden for an accused to meet.
A military judge, however, found both: egregious delay in the nearly two decades between the time the alleged victim made a report and the time Mangahas was brought to trial, and prejudice in the death of a Coast Guard Academy counselor – identified by the initials PM – who the alleged victim claims discouraged her from participating in the investigation back in 1997. Then, because this violated the Due Process Clause, the military judge dismissed the charge with prejudice (meaning Mangahas may never be tried).
The prosecution appealed and a three-judge panel of the Air Force CCA reversed, finding that “the actual substance of what PM’s trial testimony would be is speculative,” and that “even assuming that PM were to directly rebut [the alleged victim], the absence of that testimony, as discussed above, does not deny Appellee the ability to mount an effective defense.” United States v. Mangahas, Misc. Dkt. No. 2016-10, slip op at 11-12 (A.F. Ct. Crim. App. Ap. 4., 2017) (discussed here). Mangahas then appealed to CAAF, and the court granted review of a single issue:
Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating LtCol Mangahas’ Fifth Amendment right to a speedy trial.
CAAF granted review without ordering additional briefing, so the only briefs are those filed for the purpose of convincing the court to grant review. Mangahas’ brief attacks the CCA’s opinion on two primary grounds: (1) that it erred in concluding that the military judge made an erroneous finding of fact; and (2) that it erred in concluding that the substance of PM’s testimony is speculative. The brief also makes the broader argument that there was a Due Process Clause violation, and a reply brief focuses on the prejudice prong of the Due Process speedy trial test.
The possibly-erroneous finding of fact involves whether PM (the counselor) discouraged the alleged victim from participating in an investigation of her allegation. The military judge found that the alleged victim reported that PM discouraged her from pursuing the allegation. Mangahas’ defense wants to challenge that claim, because there is evidence that PM “would never discourage a victim from proceeding with a rape claim because she was a strong supporter of cadets who were assault victims.” App. Br. at 7 (discussing witness testimony). But the CCA rejected the military judge’s finding regarding what PM told the alleged victim:
the military judge found that “DS claimed in her 2014 interview with CGIS that [PM] told her not to pursue the rape allegation when she was still a cadet at the USCGA.” (Emphasis added). Having carefully reviewed the record before us, we note that DS asserts PM’s recommendation was to not continue counseling. DS made no assertion that PM told her not to pursue a rape allegation. We therefore conclude that the military judge’s finding of fact that DS claimed that PM told her not to pursue the rape allegation is unsupported by record and therefore clearly erroneous. He later marshals this erroneous finding of fact to buttress his legal conclusion of actual prejudice.
Slip op. at 9 (marks and emphases in original). Mangahas’ argues that the CCA got this wrong because “the military judge’s findings of fact are supported by the transcript of the 2014 videotaped statement,” App. Br. at 11, and because “written statements before the military judge clearly stated that [the alleged victim] told PM she did not want to ‘come forward with an investigation,'” App. Br. at 12.
The Air Force Appellate Government Division’s response addresses this contention only briefly, arguing:
AFCCA’s conclusion that the military judge’s finding of fact that DS claimed in her 2014 interview with CGIS that PM told her not to pursue the rape allegation was unsupported by the record and clearly erroneous is correct. DS’s interview plainly shows DS stated, “So she recommended that I don’t continue counseling. And so I didn’t go any further with that.” Appellant even concedes such a point, stating, “while accurate that the 2014 videotaped statement mentions counseling rather than an investigation . . . .” (App. Br. at 12.)
Gov’t Div. Br. at 35.
For the CCA’s conclusion that the substance of PM’s testimony is speculative, Mangahas’ brief asserts that other “testimony provides ample evidence to support the conclusion that PM – a counselor who was at the forefront of addressing sexual assault at the USCGA and who established a support group for cadets who were victims of sexual assault – would not discourage DS from counseling or from proceeding with a legitimate case.” App. Br. at 13-14. The brief argues that this fact supports the conclusion that:
PM’s testimony was vital to the Defense not by guessing what she would say, but based on sworn testimony subject to trial counsel’s cross-examination, as described above.
App. Br. at 14. The Government Division responds with three arguments:
[First,] neither the military judge nor Appellant can say without vast speculation what substance and impact PM’s testimony would have had. . . .
Moreover, even if PM would have remembered the conversation and denied discouraging the victim, the exact scenario suggested by both the military judge and Appellant, such testimony would not necessarily conflict with that of DS. . . .
Finally . . . PM’s death did not foreclose the ability of the defense counsel to articulate a motive to lie or potential inconsistent statements from DS. . .
Gov’t Div. Br. at 27-29.
Ultimately, these disputes about the CCA’s conclusions focus on the question of whether Mangahas suffered actual prejudice (based on the death of PM) from the two-decade delay between when the allegation was made and when the charge was preferred. Mangahas asserts that PM is an essential witness for his defense, arguing in his brief that:
PM’s live testimony denying that she told DS not to continue counseling or proceed with the case could be the “straw that breaks the camel’s back” when the members are deciding whether to believe DS’ testimony.
App. Br. at 21. Mangahs’ brief also offers other possible sources of prejudice caused by the delay, including the inability to identify other potential witnesses and forensic evidence, and faded memories. App. Br. at 23.
The Government Division disputes these factors as prejudicing Mangahas’ defense:
Contrary to Appellant’s claims and the military judge’s erroneous findings, Appellant has more than sufficient ability to “mount an effective defense.” As previously discussed, this ability was first shown at the Article 32 when he called multiple witnesses and entered 22 declarations that spoke to one or more of the following: (1) good military character of Appellant; (2) character for peacefulness of Appellant; (3) character for truthfulness of Appellant; (4) general character of DS; (5) character for truthfulness of DS; or (6) impeachment of DS’s recitation of the facts. (See App. Ex VIII at 14-15, 21-22.) Three such witnesses, each either former or current Air Force commanders, testified to their relationship with Appellant and his character for truthfulness. Such a plethora of evidence certainly goes against Appellant complaint that he is unable to identify “other fact witnesses . . . and character witnesses who are not unknown and unavailable.” (App. Br. at 23.)
Gov’t Div. Br. at 30-31. But the Government Division also makes the odd claim that
The evidence shows, in fact, he was able to mount a highly “effective defense” to the charges, particularly at his Article 32 hearing. Yet, only a few months later, Appellant came to his trial claiming he was “prejudiced by the egregious delay.”
Gov’t Div. Br. at 22. It’s hard to see how the Government Division can credibly characterize the defense presentation at the Article as highly effective when the case was subsequently referred for trial.
The Government Division’s brief also suggests that Mangahas is to blame for any prejudice:
Yet, to the extent that all parties’ inability to gather information from PM due to her passing [in March 2016] can be blamed on anyone, that blame can just as easily be placed at the feet of Appellant and his counsel as it can on the government. On 29 December 2015, counsel for the United States were “prepared to proceed with the Article 32 Hearing.” (App. Ex. IV.) However, Appellant’s civilian trial defense counsel was not available until over three months later on 19 April 2016. The Article 32 hearing took place on that very day. Had Appellant’s counsel not needed a defense delay of three months, a delay which was based on availability, PM would have been able to appear and this issue would have been averted.
Gov’t Div. Br. at 25. It’s hard to see how the Government Division can credibly characterize an accused as blameworthy in the failure to interview an important witness when it is the Government that has the resources and the obligation to see “that justice shall be done.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
Beyond the factual disputes (including whether there is an adequate substitute for live testimony from PM), there is also the question of the legal standard for actual prejudice. The CCA held that:
Prejudice may be demonstrated by showing: “(1) the actual loss of a witness, as well as ‘the substance of their testimony and the efforts made to locate them,’ or (2) the loss of physical evidence.” . . . the prejudice must be a substantial prejudice to an Appellee’s rights to a fair trial to the point where it “would impair the ability to mount an effective defense.”
Slip op. at 7 (citations omitted). The degree to which the substance of the lost testimony must be determined is a critical factor, as the CCA found (and the Government Division maintains) that the substance of PM’s testimony is speculative. But that seems like an exception that will swallow the rule, because if the substance of the testimony is known then it isn’t actually lost.
Mangahas’ brief, however, also suggests that prejudice can be found in the public’s perception of fairness:
Another argument the Air Force CCA failed to acknowledge in its opinion is the prejudice suffered due to the impact on the public’s perception of the fairness and integrity of the military justice system. See United States v. Haney, 64 M.J. 101, 108 (C.A.A.F. 2006); United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). Surprising an exceptionally successful Air Force Officer with an accusation as heinous as rape after an extensive and unjustified Government-caused delay certainly reflects poorly on the fairness and integrity of the system.
App. Br. at 24. I don’t think this is right because CAAF’s decision in Haney found no prejudice despite finding that “the egregiousness of the unexplained delay in this case was such that the perception of fairness of the military justice system is potentially jeopardized.” Haney, 64 M.J. at 108. Put differently, Haney stands for the proposition that public perception applies to the delay prong, not the prejudice prong, of the Due Process speedy trial test. And Toohey applied a substantially different test (requiring the Government prove the constitutional violation – unreasonable appellate delay – harmless).
Even though Mangahas lost at the Air Force court, he likely argues from a position of strength at CAAF next week because of the deference afforded to a military judge’s rulings. Cf. United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) (CAAFlog case page) (reinstating dismissal ruling based on discovery violation and reversing ACCA’s decision that the military judge misjudged the scope and magnitude of the discovery issues). Furthermore, even though the granted issue focuses on the Air Force court’s decision, in an interlocutory case CAAF “pierce[s] the intermediate level of appellate review and examine[s] the military judge’s ruling directly.” United States v. Baker, 70 M.J. 283, 288 (C.A.A.F. 2011) (quoting United States v. Meghdadi, 60 M.J. 438, 441 (C.A.A.F. 2005)). See also Stellato, 74 M.J. at 480 (“Although the granted issues ask whether the CCA erred in reversing the military judge’s decision, we review the military judge’s rulings directly in an Article 62, UCMJ, appeal.”).
Just as Article 66(c) requires a CCA to “recogniz[e] that the trial court saw and heard the witnesses,” when determining questions of fact, CAAF will likely give substantial deference to the military judge’s conclusion that there is no adequate substitute to live testimony from PM. Whether that’s enough to reinstate the military judge’s dismissal – and prevent Mangahas from ever facing trial for this allegations – remains to be seen.
• AFCCA opinion
• Blog post: Air Force CCA opinion analysis
• Bog post: CAAF grants
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview