CAAF will hear oral argument in United States v. Brown, No. 13-0244/NA, on Tuesday, May 14, 2013. The case involves a challenge to the trial military judge’s ruling allowing a “victim advocate” to sit with a 17 year old alleged victim during her testimony on the merits. CAAF granted review of the following deep-format issue:
Generally, outside the military justice system, witness attendants may accompany a child on the witness stand if the prosecution shows good cause and the trial judge makes a finding of compelling or substantial need. Here, without good cause shown and without findings of compelling or substantial need, the military judge allowed a victim advocate to serve as a witness attendant for a seventeen-year-old; then the military judge referred to the witness attendant as the complainant’s “advocate” before the members. Did this procedure violate appellant’s presumption of innocence and right to a fair trial?
The Appellant was convicted contrary to his pleas, by a general court-martial composed of officer and enlisted members, of two specifications of rape of a child, one specification of aggravated sexual abuse of a child, two specifications of child endangerment, and three specifications of indecent liberties with a child, in violation of Articles 120 and 134, UCMJ. He was sentenced to reduction in rank to pay-grade E-1, confinement for forty-five years, and a dishonorable discharge.
In 2009 the Appellant was accused of having provided alcohol and pornography to his two step-daughters. He was also alleged to have sexually assaulted one of the girls, [AW], from 2004 to 2008. In 2011, AW, then almost 18 years old, testified at the Appellant’s court-martial. However, she began crying uncontrollably at the beginning of the prosecution’s direct examination. The members were excused and the military judge asked the prosecution how it would proceed. Trial counsel asked the judge to allow AW’s “victim advocate” to sit next to her in the courtroom during her testimony. Over objection from the defense, the military judge permitted the victim advocate to sit next to the witness throughout her testimony. The military judge also provided an instruction to the members about the presence of the advocate. AW then testified about the Appellant’s numerous sexual assaults of her, and the Appellant was convicted.
A three judge panel of the NMCCA reviewed the case and heard oral argument in August, 2012. It then issued an unpublished opinion that rejected the Appellant’s challenge to the presence of the victim advocate:
We find that the presence of the advocate in the bailiff’s chair during AW’s testimony, or labeling her to the members as an “advocate,” did not impinge on the appellant’s constitutional right to a fair trial or his rights under the Sixth Amendment’s Confrontation Clause. Because we reject the appellant’s claims of constitutional violations, we review the military judge’s decision to allow the victim advocate in the courtroom for an abuse of discretion, and conclude the military judge did not abuse his discretion in this regard.
United States v. Brown, No 201100516, slip op. at 7 (N-M.Ct.Crim.App. Nov 28, 2012) (unpublished).
In his brief to CAAF, the Appellant argues that allowing a victim advocate to accompany “a complainant” on the witness stand “erodes the presumption of innocence and violated an accused’s due process right to a fair trial. The accommodation is inherently prejudicial.” App. Br. at 9. The Appellant asks CAAF to apply “close judicial scrutiny” based on the Supreme Court’s decision in Holbrook v. Flynn, 475 U.S. 560, 568 (1986), and argues that the presence of the victim advocate requires “compelling or substantial need.” Slip op. at 11. Alternatively, if not inherently prejudicial, the brief argues that the presence of the victim advocate was prejudicial to the Appellant’s constitutional right to due process, and further that it was compounded by the military judge’s introduction of the advocate as AW’s “advocate,” combining to amount to a non-harmless constitutional error. App. Br. at 9-10.
The Appellant’s argument that the presence of the advocate was inherently prejudicial, requiring close judicial scrutiny, is based on the principle that “appearances matter at trial.” App. Br. at 11. The brief identifies a number of situations that have risen to the level of inherent prejudice, such as: the presence of four uniformed state troopers seated behind the defense, a defendant in prison garb or shackles, a trial judge meeting a child witness at the gallery gate and then escorting that child to the witness stand, a judge rewarding a child victim with candy at the conclusion of her testimony, and a victim advocate sitting behind the witness with her hands on her shoulders during testimony. App. Br. at 12. However, the brief notes that such inherent prejudice does not necessarily require reversal, as the Supreme Court noted in Holbrook that “close scrutiny of inherently prejudicial practices has not always been fatal.”App. Br. at 12-13 (quoting Holbrook, 47 U.S. at 568-732).
On this point the Appellant’s brief concludes that:
With [the advocate] by her side, AW became an unfairly enhanced witness, doubled in presence and power. The advocate underscored the fragile, emotional state of A.W. as she sat silently beside her. Needing someone to blame, it became far too easy to point to the man seated at the defense table–MA1 Brown.