CAAFlog » September 2014 Term » United States v. Bowser

The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014, and what a story it was.

First, we noticed media reports about the military judge’s ruling, in a post titled: Rape Charges Dismissed for Prosecutorial . . . Incompetence(?)

Then we noted the scheduled oral argument at the Air Force CCA.

The Air Force CCA’s decision provided plenty of details, as the court denied the Government appeal of the dismissal of rape charges that was ordered after the Government refused to produce witness notes. The CCA’s opinion revealed that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.

That got the case onto our Top Ten list, but it wasn’t over as the the Air Force JAG certified the case to CAAF.

And then CAAF ordered the Government to re-brief the case, to address “possible controlling or adverse authority.”

Now, in an summary decision issued yesterday, CAAF affirms the military judge and the Air Force court:

No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08.  On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Jan. 5, 2015)), and the briefs of the parties and amicus curiae, we conclude that the military judge did not abuse his discretion in dismissing all charges and specifications with prejudice following the Government’s refusal to comply with the military judge’s order to produce trial counsel’s witness interview notes for an in camera inspection. “[A] judge is ultimately responsible for the control of his or her court and the trial proceedings,” and “[p]roper case management during a trial, necessary for the protection of an accused’s due process rights and the effective administration of justice, is encompassed within that responsibility.” United States v. Vargas, 74 M.J. 1, 8 (C.A.A.F. 2014). Because a judge has broad discretion and a range of choices in crafting a remedy to cure discovery violations and ensure a fair trial, this Court will not reverse so long as his or her decision remains within that range. See United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). In this case, the military judge’s decision, as affirmed by the Court of Criminal Appeals, was within that range. Accordingly, it is ordered that the certified questions are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

CAAF’s daily journal for January 15, 2015 (yesterday) shows a new grant:

No. 14-0685/AF. U.S. v. Wilber J. McIntosh, Jr. CCA 37977. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE WHICH STRONGLY CORROBORATED THE DEFENSE THEORY THAT THE ALLEGATIONS IN THIS CASE WERE FALSE.

Briefs will be filed under Rule 25.

The AFCCA heard oral argument in this case (audio available here). It considered and rejected the issue granted review by CAAF in an unpublished opinion available here. It also denied a petition for reconsideration en banc (order available here).

The daily journal also shows this order in the certified Air Force case of United States v. Bowser, No. 15-0289/AF (CAAFlog case page), our #10 military justice story of 2014:

No. 15-0289/AF. U.S., Appellant v. Roy A. Bowser, Appellee. CCA 2014-08. On consideration of the certificate for review and Appellant’s brief in support of the certified issues, dated January 5, 2015, under C.A.A.F. R. 15(a), and MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(2) adopted therein, we find they fail to address United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014), and United States v. Browers, 20 M.J. 356 (C.M.A. 1985) as possible controlling or adverse authority. Appellate courts can and should require re-briefing to address deficiencies. See Passmore v. Estell, 607 F.2d 662, 664 (5th Cir. 1979), cert. denied, 446 U.S. 937 (1980). Accordingly, it is ordered that, within 10 days of the date of this Order, Appellant will file an amended brief addressing the deficiency noted. No extensions of time will be granted.

Appellee’s brief, currently due on January 26, 2015, will instead be filed within 10 days of the filing of Appellant’s amended brief. Any reply brief by Appellant will be filed within 5 days of the filing of Appellee’s brief.

Wow.

Notably, this order comes exactly one day before the one year anniversary of CAAF’s January 16, 2014, order that rejected the Government’s initial brief in United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014) (CAAFlog case page).

The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014. The case might just make our list two years in a row, as CAAF’s daily journal for Monday shows the following:

No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and supporting brief were filed under Rule 22 on this date on the following issues:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT TRIAL COUNSEL A BRIEF CONTINUANCE TO CONSULT WITH THEIR SUPERVISORY ATTORNEYS, FINDING PROSECUTORIAL MISCONDUCT AND BAD FAITH FOR THE FIRST TIME SEVENTEEN DAYS AFTER THE NOTICE OF APPEAL WAS FILED, AND DISMISSING ALL CHARGES AND SPECIFICATIONS WITH PREJUDICE.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN, CONTRARY TO ARTICLE 62(B), UCMJ, IT REQUESTED FACTS OUTSIDE OF THE RECORD SOLICITED IN ORAL ARGUMENT TO “PARTIALLY INFORM [ITS] DECISION AS TO WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION.”

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT CONCLUDED THAT DISMISSAL WITH PREJUDICE WAS APPROPRIATE DESPITE EXPRESSLY FINDING 1) TRIAL COUNSEL’S REQUEST FOR A CONTINUANCE WAS REASONABLE AND 2) “THE RECORD CONTAINS [ ] INFORMATION INCONSISTENT WITH [THE MILITARY JUDGE’S] FINDINGS OF FACT.”

Appellee will file an answer under Rule 22(b) on or before January 15, 2015.

Readers may recall that my analysis of the CCA’s opinion rejecting the Government’s appeal ended with the following paragraph:

While I won’t be surprised if the Judge Advocate General of the Air Force certifies this case to CAAF (especially considering the recent history of JAG certifications), the JAG might want to think twice. The Air Force court’s opinion is pretty strongly worded, and it casts an awfully harsh light. I think it highly unlikely that CAAF will be more charitable.

I stand by my original assessment.

Like many of our readers, one of the things I love about criminal law and military justice are the stories. Each case, each client, and each courtroom experience is a story. But some stories are better than others. And some reveal or remind of us of fundamental truths.

This year’s Number 10 story is the saga of United States v. Browser, 73 M.J. 889 (A.F.C.C.A. 2014). As discussed here and here, the military judge dismissed the spousal-rape case with prejudice after the government refused to turn over witness-interview notes for an in camera review following claims of Brady violations.

The Air Force Court of Criminal Appeal’s opinion (here) lays out the facts well, as does Zack’s previous post (here). So I’ll only give a short recap. Chief Master Sergeant Bowser was accused of raping his wife three times (1994, twice in 2008) along with forcible sodomy and battery. The case was a classic he-she said in the sense that the government’s principle evidence at trial was the testimony of the alleged victim. Along the way, there was a pretext phone call to the accused from the alleged victim, but it was suppressed.

After fights over late disclosures, the government made a final disclosure of two senior enlisted witnesses’ statements that were inconsistent with statements previously made by the alleged victim. In the process of turning them over, the trial counsel opined that the statements were provided in “an abundance of caution” and that the trial counsel was “erring on the side of over disclosure.”

In the following arguments, the government offered to turn over all its notes from interviews for an in camera review. 73 M.J. at 893. But then changed position and refused. The military judge ordered the government to turn over the notes for an in camera review and the government continued to refuse. Ultimately, the military judge dismissed the charges and specifications with prejudice and the government appealed under Article 62, UCMJ.

The Air Force Court of Criminal Appeals denied the government appeal in a strongly worded opinion. The Court found the military judge’s order was lawful and appropriate and that the government had no acceptable reason to refuse to comply. As a result, the Court found the military judge’s remedy of dismissal with prejudice was within his discretion.

One of the many wonderful aspects of military service as a judge advocate is the opportunity to work and experience criminal law from both sides of the courtroom. Of course, I can only speak of myself, but my service as a trial counsel made me a better defense counsel and my service as a defense counsel made me a better trial counsel. Working on both sides provides perspectives that most attorneys lack. Many of us have been to civilian training events with career prosecutors and career defense attorneys. I was always struck by how many career prosecutors and defense attorneys seem to have the default position that the other side is always lying, cheating, or stealing. But, of course, that’s not true.

Few of us know all the details and background of this case. The AFCCA opinion though tells a twisted saga. After a favorable discovery ruling on the motion to suppress the pretext phone call, the defense elected trial by military judge alone. The defense then announced it was withdrawing its objection to the pretext call statements. Presumably, the statements cut both ways and the defense decided to let the military judge consider them. Many of us have changed our litigation strategy based on the forum selected. The government responded by moving to recuse the military judge because he had reviewed the pretext phone call. Later, following more Brady discovery fights, the defense counsel moved to disqualify the trial counsel. The best adjectives to describe this court-martial escape me.

All of which brings me back to the idea of fundamental lessons. Why would the government refuse an in camera review? And even more perplexing is why the government continued to maintain that position on appeal? Why didn’t the trial counsel give over anything close to Brady much earlier in the process? And what was gained by taking such hard line positions?

Regardless of the rationales of the government in this case, the saga highlights for all of us, new and old the importance of not losing sight of the goal. For the government, that is justice. The government wears the white hat. And fighting for the sake of fighting is rarely the best or most effective strategy. Whether I have misread the specific facts here or not, Bowser can still remind us of those lessons. And that is why it is #10 in our list of the Top Ten Military Justice Stories of 2014.

Back in June, in this post, Mike noted a media report about the dismissal of sexual assault charges in an Air Force general court-martial. At the time it appeared that the charges were dismissed due to prosecutorial incompetence, but precise details were slim. Then, in this September TWIMJ post, I noted a scheduled oral argument at the AFCCA for an an Article 62 appeal in the case.

Update (Oct. 8): A commenter noted that today the CCA posted the audio of the oral argument. It’s available here.

Last week the CCA issued its ruling in a published opinion. United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (link to slip op.). The court denies the Government’s appeal and affirms the judge’s ruling that dismissed – with prejudice – the charges of rape, forcible sodomy, and assault.

The CCA’s opinion provides lots of facts, revealing that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.

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Stripes reports, here, that a military judge has dismissed charges against Air Force Chief Master Sgt. Roy A. Bowser Jr.  The government reportedly twice failed to disclose evidence that might be categorized as Brady v. Maryland, see United States v. Mahoney, 58 MJ 346 (C.A.A.F. 2003), and was likely required to be disclosed under R.C.M. 701, because it reportedly would have challenged the credibility of the victim in the case.