In 1984, President Reagan’s reelection campaign produced a television advertisement about a bear (a representation of the Soviet Union and communism in general). The ad discussed how some some see the bear as dangerous, some see it as tame, and some don’t see it at all. Like the dangerous bear, the existence and scope of something called “military due process” is an almost existential question that CAAF will take up when it hears oral argument in United States v. Vazquez, No. 12-5002/AF, on Wednesday, October 24, 2012, after the argument in United States v. Halpin, No. 12-0418/AF.
The factual and procedural history of this case, which was tried in 2009, are not exactly textbook. Staff Sergeant Ray Vazquez, USAF, was charged with aggravated sexual contact with a child under the age of 12, in violation of Article 120 (2007). The allegation arose from a 4-year-old’s pronoun-confused statement to her mother that “Uncle Ray made me lick her body,” followed by the child pointing to the groin area of a pediatrician’s doll to indicate that she had been touched in that area. SSgt Vazquez was a close friend of the girl’s family (both parents were enlisted servicemembers), and AFOSI arranged a pretext phone call between the father and SSgt Vazquez, during which the SSgt adamantly denied the allegation.
The case found its way to trial by a general court-martial composed of five officer members, but before the members were seated the Military Judge granted a prosecution request to allow the girl to testify via remote means (video feed). After the girl testified, along with her mother, the pediatrician, an AFOSI investigator, and a Government expert, one of the members realized that the father, whom he had seen in the witness waiting area, was one of his subordinates in the rating chain. The member was quickly excused, but this reduced the panel to four members; below the quorum of five required for a general court-martial.
Five additional members were detailed by the Convening Authority and, after voir dire, two were added to the panel. A verbatim transcript of the proceedings up to that point was produced and read to the two new members (in accordance with Rule for Courts-Martial 805(d)(1)). The Defense did not object or request a mistrial, and the trial continued, with testimony from the girl’s father followed by testimony from SSgt Vazquez, during which he forcefully denied the charge. The members then returned a finding of guilty, and a sentence of a dishonorable discharge, 8 years of confinement, forfeiture of all pay and allowances, reduction to E-1, and a reprimand. The Convening Authority approved the sentence as adjudged.
33 months later, in a published opinion released on March 19, 2012, and subsequently corrected on April 27, 2012, the Air Force Court of Criminal Appeals set-aside the findings and dismissed the charge. United States v. Vazquez, 71 M.J. 543 (A.F.C.C.A. 2012). The court’s action was predicated on it finding “a violation of the appellant’s military due process rights” which the court found “per se prejudicial and mandate reversal of the appellant’s conviction.” Vazquez, 71 M.J. at 552 (emphasis added). The CCA determined that:
We hold that the appellant was not afforded a fundamentally fair trial, as guaranteed by military due process and the UCMJ, when two of the six court members were added to the panel after five of the Government’s six witnesses had already testified and thus did not receive a substantial portion of the Government’s evidence in the same manner as the other four panel members.
Vazquez, 71 M.J. at 546 (emphasis added). And:
Given the critical importance of the evidence provided by the five witnesses, reading the trial transcript to the panel members was an inadequate substitution for the witness’ in-court testimony. As such, there was no procedural method, short of having each witness testify again, that would ensure the appellant received the full due process protections afforded by the UCMJ. We find that, under the facts of this case, the military judge had a sua sponte duty to declare a mistrial.
Vazquez, 71 M.J. at 551-52 (emphasis added). During the period between the two opinions, SSgt Vazquez sought habeas relief, and the Government sought reconsideration. The CCA denied both requests, basing its habeas action on the principle that the CCA’s action is not final until the running of a 30-day period for certification or reconsideration. SSgt Vazquez remained confined and in late-May the Judge Advocate General of the Air Force certified two issues to CAAF:
I. Whether the Air Force Court of Criminal Appeals erred by holding that Appellee was not afforded a fundamentally fair trial, as guaranteed by military due process and the UCMJ, when two replacement court members detailed after trial on the merits had begun were presented recorded evidence previously introduced before the members of the court in compliance with Article 29, UCMJ, and R.C.M. 805(d)(1).
II. Whether the Air Force Court of Criminal Appeals erred by failing to find waiver or by failing to conduct a plain error analysis; instead, the court incongruously found the alleged violation of Appellee’s right to military due process was per se prejudicial despite declaring that the error was not structural.
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