Opinion Analysis: A weak objection and no requirement that a military judge do more in United States v. McFadden, No. 12-0501/AF
CAAF decided the Air Force case of United States v. McFadden, 74 M.J. 87, No. 12-0501/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 3, 2015. A sharply divided court finds that the military judge did not err in denying Appellant’s motion for a mistrial or in failing to sua sponte excuse a member for cause after the member equated Appellant’s invocation of her 31(b) right to remain silent to lying by omission. CAAF affirms Appellant’s convictions and the decision of the Air Force CCA.
Judge Stucky writes for the majority, joined by Judges Erdmann and Ryan. Judge Ohlson dissents, joined by Chief Judge Baker.
CAAF granted review of two issues in this case:
I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.
II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.
Appellant was tried in 2009 by a general court-martial composed of officer members. She pleaded guilty to one specification of unauthorized absence in violation of Article 86, and not guilty to one specification each of conspiracy to commit desertion, desertion, and making a false official statement, in violation of Articles 81, 86, and 107. She was convicted of all of these offenses and sentenced to confinement for 24 months, total forfeitures, reduction to E-1, a fine of $1,650, and a bad-conduct discharge (the convening authority disapproved a 36-day term of contingent confinement). The Air Force CCA affirmed in three separate opinions.
A central issue during the trial of this case was whether Appellant ever formed the intent to remain away permanently that is required for a conviction of desertion. Appellant testified in her own defense during the findings phase of her trial, asserting that she never formed the intent to remain away permanently. Yet during her testimony, Appellant acknowledged that during pretrial interrogations she invoked her right to remain silent when asked about her intent. Then the members were permitted to question Appellant (without first submitting their questions in writing to the military judge, as required by M.R.E. 614(b)). One member – named Major Cereste – questioned Appellant’s invocation of her right to remain silent, likening it to lying by omission:
Major Cereste, a court member, and Appellant then engaged in the following exchange:
Q. My next question is: You testified today on numerous accounts of overt deception, and to me you seem to have a heightened intuition of other people’s motives. For example, you were aware that perhaps Airman Dover might tell people X, Y, Z, so you told her certain things. Have you also heard of lying by omission — so — exercising your right to remain silent. So, how is your testimony today regarding never intending to desert the Air Force permanently different from your previous pattern of deception?
A. Because, before, I had never formed the intent to remain away permanently. And I’ve already admitted to going AWOL, which I take responsibility for, but I don’t want people to think that intent was to never come back.
Slip op. at 4-5 (quoting record) (emphasis added). Appellant’s counsel subsequently moved for a mistrial, but did not seek to voir dire or disqualify the member. The motion for a mistrial was denied, but the military judge instructed the panel (using language provided by the defense) that Appellant’s invocation of her right to remain silent was not lying by omission.
Judge Stucky’s majority opinion doesn’t explicitly state that the failure of the defense to challenge the member or make a more aggressive objection is the reason for the court’s decision in this case, but it comes pretty close. His opinion also highlights the discretionary nature of a military’s judge’s ability to do more than requested.