CAAFlog » September 2012 Term » United States v. Brown

CAAF decided United States v. Brown, No. 13-0244/NA, 72 M.J. 359 (CAAFlog case page) (link to slip op.), on July 15, 2013, finding that the military judge did not abuse his discretion under Military Rule of Evidence 611(a) when he allowed the victim advocate to sit next to the 17 year-old victim during her testimony against Appellant, affirming the NMCCA.

Chief Judge Baker writes for a unanimous court.

Appellant, Master-At-Arms First Class (E-6) Donald Brown, was convicted in 2011, contrary to his pleas, by a general court-martial composed of members with enlisted representation, of rape of a child, aggravated sexual assault 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. The members sentenced him to confinement for forty-five years, reduction to E-1, and a dishonorable discharge, and that sentence was approved.

In 2009 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 for the Government at 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 Appellant was convicted.

On appeal, Appellant asserted that the military judge’s decision to allow the victim advocate to sit next to AW while she testified was improper, and that it violated his constitutional right to due process by eroding the presumption that he was innocent. In response, the Government asserted that the military judge merely exercised reasonable control over the proceedings, as was his duty under Rule for Courts-Martial (R.C.M.) 801 (“Military judge’s responsibilities…”) and M.R.E. 611 (“Mode and order of interrogation and presentation”). For a detailed analysis of these positions, see my argument preview in this case. The Navy-Marine Corps CCA rejected Appellant’s challenge.

Chief Judge Baker begins his discussion with the following language that is fantastically bad for Appellant’s case:

We review a military judge’s control of the mode of witness interrogation pursuant to M.R.E. 611 for abuse of discretion. Similarly, we review a military judge’s exercise of “reasonable control over the proceedings” pursuant to R.C.M. 801 for abuse of discretion.

Slip op. at 7 (citations omitted). Appellant asked CAAF to apply “close judicial scrutiny,” and argued that the presence of the victim advocate was “inherently prejudicial.” CAAF’s unanimous decision to test this case for an abuse of discretion (the standard most deferential to the trial judge’s decision), and to avoid any discussion of constitutional due process, is an outright and complete rejection of Appellant’s main argument. Though, the Chief Judge is kind enough to not say so explicitly.

But the opinion is short, with Chief Judge Baker dedicating just two pages to the analysis of why the military judge did not abuse his discretion by “allowing a support person to accompany AW on the stand.” Slip op. at 9. See also slip op. at 5-6 N.4 (“Courts generally refer to an adult who accompanies a witness to the stand to facilitate the witness’s testimony as an ‘attendant’ or ‘support person.’ . . . this case and this opinion only address the use of a trained victim advocate as a support person.”). This analysis is nicely summarized in the penultimate paragraph of the opinion:

In this case, the witness was physically overtaken by sobbing and could not provide information to the court. Where, as here, the military judge took reasonable steps to test the witness’s capacity to continue as well as steps to mitigate the risks of prejudice to the accused, it was within the military judge’s discretion to conclude that further attempts to proceed with a witness in such a state would “needless[ly] consum[e] . . . time,” M.R.E. 611 (a)(2), and do not aid in “ascertainment of the truth,” M.R.E. 611 (a)(1).

Slip op. at 10. And so CAAF finds no error and affirms.

There are few practice points to be drawn from this short opinion, but two are clear. First, military judges wield a lot of power over the mode and method of presentation of the evidence. And second, a successful challenge to a particular exercise of this power requires a well-developed record; if the judge permits a party to use an undesirable method to present evidence, opposing counsel must fight hard to get the judge to make detailed findings if they hope to successfully challenge the method on appeal.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: CAAF grants
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
CAAF oral argument audio
CAAF opinion
Blog post: Opinion analysis

Today CAAF decided United States v. Brown, No. 13-0244/NA (opinion) (CAAFlog case page), finding that the military judge did not abuse his discretion under Military Rule of Evidence (M.R.E.) 611(a) when he allowed the victim advocate to sit next to AW during her testimony, affirming the NMCCA in a unanimous opinion authored by Chief Judge Baker.

Still undecided are LRM, and Salyer. Analysis of Brown to follow…

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.

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March appears to be “Palmer Month” for the military appellate courts.  CAAF today granted review of another case concerning whether Judge Palmer satisfied the impartiality standard to preside over the trial:

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE.  APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED.  WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

United States v. Pacheco, __ M.J. __, No. 13-0268/MC (C.A.A.F. March 22, 2013).  CAAF directed that no briefs would be filed.

CAAF also granted review of an interesting issue concerning a witness attendant in a child abuse case:

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?

United States v. Brown, __ M.J. __, No. 13-0244/NA (C.A.A.F. March 22, 2013).  CAAF also ordered expedited briefing, suggesting that the court will hear the case during this oral argument season, which closes 15 May.  NMCCA’s unpublished opinion in the case is available here.