Earlier this year a three-judge panel of the Army CCA issued an unpublished decision denying a petition for extraordinary relief in Murray v. United States, No. 20180025 (A. Ct. Crim. App. Jan. 31, 2018) (link to slip op.).
The petition was based on allegations of prosecutorial misconduct and the CCA rejects it because the claimed misconduct was “known by appellant prior to the original court-martial judgment,” and because it finds “no valid reason for petitioner’s failure to raise this issue during his court-martial and seek relief earlier.” Slip op. at 1.
But the CCA doesn’t leave it there. Writing for the panel, Senior Judge Campanella details the substance of the allegations, explaining that:
Petitioner alleges that during his court-martial, the prosecutor, Lieutenant Colonel (LTC) Matthew McDonald, took CPT KB aside, and asked him a series of questions related to the rental arrangement between petitioner and CPT KB and asked CPT KB whether he reported the rental income on his income taxes. Petitioner asserts that during this conversation LTC McDonald threatened CPT KB with criminal prosecution, and reporting him to his chain of command and the Internal Revenue Service (IRS), if he testified for petitioner.
Slip op. at 2. If you think the name of that prosecutor is familiar, you’re right. CAAF also named him in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) (CAAFlog case page).
Applying the ordinary (and strict) six-part threshold test for granting extraordinary relief, Senior Judge Campanella explains that Murray’s petition fails on its merits:
In United States v. Morgan, 346 U.S. 502, 511-12 (1954) the Supreme Court observed that coram nobis permits the “[c]ontinuation of litigation after final judgment and exhaustion or waiver of any statutory right of review,” but only under very limited circumstances. Although a petition may be filed at any time without limitation, a petitioner must meet all six stringent threshold requirements: (1) the alleged error is of the most fundamental character; 2 (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist. Denedo I, 66 M.J. at 126 citing Morgan, 346 U.S. at 512-13; Loving v. United States, 62 M.J. 235, 252-53 (C.A.A.F. 2005).
First, assuming petitioner’s claims are true, petitioner’s writ alleges an error that is clearly fundamental in character in that it has the potential to affect the credibility of the child victim’s testimony in this case.
Second, there appears to be no other remedy available to petitioner.
As to the third criteria, we find it is not met. This court finds no valid reason why petitioner did not seek relief earlier. Petitioner’s assertions that he was overwhelmed by the court-martial process, did not want to injure his friend’s career, and did not understand the full import of LTC McDonald’s conduct, are not credible. Had petitioner explained the situation to his defense counsel at the time, action could have been taken to address the alleged misconduct. We find petitioner’s reasons unreasonable and unconvincing.
As to the fourth criteria—whether the alleged prosecutorial misconduct could have been discovered using reasonable diligence—the information was known by appellant at the time of his court-martial prior to the original judgment. Defense’s argument, that LTC McDonald’s misconduct was not “discovered” because petitioner failed to inform his defense counsel due to his concern for his friend’s career and his misunderstanding of the seriousness of the alleged misconduct, falls flat with this court. Petitioner had actual knowledge during his court-martial of the very information he puts before this court today including the underlying information that could be used in an attempt to impeach the victim. Curiously, the record before us conspicuously contains no information regarding the defense counsel’s response to being informed by his client that a key witness in the case would not be testifying. Because a defense counsel decides which witnesses to call, and because of the nature of witnesses testimony in this case, we find the petitioner’s assertion of unquestioning acceptance by the defense counsel to be implausible, and again, unconvincing.
[Footnote: We need not decide the two remaining criteria.]
Finally, we have recently held that an extraordinary writ cannot be used as an end-run around the two-year time limit for considering a petition for new trial under Article 73, UCMJ. Unites States v. Roberts, ARMY MISC 20180005, __ M.J. __ (Army. Ct. Crim. App. 30 Jan. 2018) [discussed here].
Slip op. at 3-4.
A footnote adds:
This court directs the Clerk of Court to process this allegation in accordance with appropriate protocols regarding allegations of prosecutorial misconduct.
Slip op. at 4 n.5.
Senior Judge Campanella’s decision ends by dismissing the writ petition for lack of jurisdiction, which seems to me to be the wrong result (because the threshold requirements aren’t jurisdictional but rather go to whether the requested writ should be granted, and so the petition should be denied rather than dismissed). But on March 13 CAAF agreed with the CCA:
No. 18-0147/AR. In re Gregory J. Murray. CCA 20180025. On consideration of the brief in support of petition for extraordinary relief in the nature of writ of error coram nobis, or, in the alternative, writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the petition is hereby dismissed for lack of jurisdiction.