Seaman Apprentice Rapp was convicted, pursuant to his pleas by a military judge alone as a general court-martial, of one specification of receiving child pornography, one specification of possessing four or more images of child pornography, and one specification of attempting to receive child pornography, all in violation of Article 134. He was sentenced to confinement for 5 years (later reassessed to 54 months), total forfeitures, reduction to E-1, a $16,000 fine, and a dishonorable discharge. Pursuant to a pretrial agreement, all confinement in excess of 12 months was suspended.

Before the CCA, the appellant claims, inter alia, that the military judge erred by accepting his guilty plea to receiving child pornography and possessing four or more images of child pornography, because some of the 16 images were not child pornography. The CCA agrees.

Judge Joyce writes for a unanimous panel. Her opinion begins with a discussion of how the Government incorporated the definition of child pornography provided by 18 U.S.C. § 2256(8) into the charge. Judge Joyce notes that this definition is pretty specific, including requiring the visual depiction to involve “sexually explicit conduct,” which means:

actual or simulated (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v)lascivious exhibition of the genitals or pubic area of any person. . .

Slip op. at 5. “[T]he application of ‘lascivious exhibition’ is pivotal to this case,” and Judge Joyce carefully reviews caselaw discussing what makes an exhibition “lascivious” in this context. Slip op. at 6-7. Notably, of the 16 images at issue (and attached to the record as a prosecution exhibit), “only one image included in [the exhibit] depicts a sexual act.” Slip op. at 6. Also, the Appellant didn’t review the images in advance of his plea, which occurred 18 months after his computer was seized, leading to a pretty non-specific plea inquiry. After reviewing the transcript of the plea inquiry, Judge Joyce concludes:

[T]he military judge was required to ensure compliance with the legal statutory definition of child pornography. Mere conclusions of law recited by the accused are insufficient to establish a factual basis for a guilty plea. As part of establishing the facts to a child pornography charge such as this, the appellant must describe images that contained minors engaged in sexually explicit conduct, in this case the relevant conduct being the lascivious exhibition of the genitals and pubic area of any person. An insufficient inquiry took place, and the appellant did not satisfy the elements of each and every offense.

Slip op. at 11 (citations and marks omitted). She also finds that the Appellant was not provident to an attempt:

During the providence inquiry, the appellant repeatedly told the military judge, “I tried to get child pornography” and “I was attempting to receive child pornography.” Record at 71, 73. Again, these statements are nothing more than legal conclusions, and are compromised by the appellant’s apparent misunderstanding of what constitutes child pornography.

Slip op. at 12-13. But then Judge Joyce goes one step further, noting that of the 16 issues at issue in this case, six of them “do not depict sexually explicit conduct, and, in fact do not depict any genitals or pubic areas, much less a ‘lascivious exhibition.’” Slip op at 13-14. She finds that these images are constitutionally protected, and raising concerns about other images, including distinguishing some as “child erotica” vice “child pornography,” and wondering about the intent of the photographers for others.

Finally, the Judge Joyce cites CAAF’s opinion last term in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012): “If a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision.” Slip op. at 15. And so the findings are set-aside and a rehearing authorized.

Re-reading my opinion analysis in Barberi, I see this penultimate paragraph:

Moreover, Barberi creates an even bigger unanswered question: How should the government charge a child pornography case involving multiple images? If the government uses a single specification to allege wrongful possession of multiple images, and just one of those images doesn’t meet the definition of child pornography, must the entire conviction be set-aside? If the answer to this question is “yes,” then must the government charge each image as a separate specification? What about multiplicity and unreasonable multiplication of charges? What about the majority’s prejudice analysis that turns on the “contribut[ion] to the conviction” of the “protected” images; will the admission of any “protected” image at trial, even for a separate specification, create reversible error as to all?

Barberi was a contested case (where the key issue was general verdicts) and this case was a guilty plea (where the key issue is the definition of child pornography), but the NMCCA’s treatment of this case makes me pretty confident that a constitutional deficiency affecting only a few (maybe as few as just one) of the images will be fatal to a child pornography conviction. Accordingly, the Government is going to have to be much more careful with its charging decisions going forward. Do I get to say I predicted this?

I.   WHETHER SPECIFICATION 3 OF CHARGE I IS VOID FOR VAGUENESS BECAUSE THE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

II.  WHETHER SPECIFICATION 3 OF CHARGE I IS LEGALLY INSUFFICIENT WHEN THE GOVERNMENT FAILED TO PROVE THAT THE POSSESSION OF CONSTITUTIONALLY PROTECTED IMAGES OF MINORS AS “SEXUAL OBJECTS” AND IN “SEXUALLY SUGGESTIVE” POSES HAD A DIRECT AND PALPABLE EFFECT ON THE MILITARY MISSION AND THEREFORE WAS ACTUALLY SERVICE DISCREDITING AS REQUIRED BY UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

 United States v. Warner, __ M.J. __, No. 13-0435/AR (C.A.A.F. May 20, 2012). 

Judge Stucky writes for a unanimous court.

The Appellant was convicted, by a general court-martial composed of members with enlisted representation, of numerous offenses, some in accordance with and some contrary to his pleas. Relevant to this appeal, the Appellant was convicted of abusive sexual contact in violation of Article 120, based on an encounter with his roommate, Lance Corporal (LCpl) [K]. LCpl K testified that on the morning of December 17, 2010, after falling asleep clothed in his barracks room bed, he woke up to find his pants and boxer shorts down by his ankles and Appellant lying in between his knees. LCpl K testified that Appellant rubbed his genitals against LCpl K’s, then jumped into his own bed where LCpl K confronted him.

Despite this compelling evidence of guilt, the prosecution also presented evidence of prior acts of sexual misconduct, pursuant to M.R.E. 413 which provides that:

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

M.R.E. 413(a). Prior to this case, the Appellant was tried by a separate court-martial for alleged sexual assaults of two other Marines, LCpls [B] and [R]. He was acquitted of those assaults, and evidence at that trial showed that he had an alibi: The Appellant was arrested for driving under the influence at a location 45 minutes away from the place where he allegedly assaulted LCpls B and R at the same time that LCpls B and R claimed he assaulted them. Nevertheless, the military judge allowed the Government to present the testimony of LCpls B and R at the subject court-martial, where they testified about the incident involving them (again, of which the Appellant was acquitted), finding their testimony admissible under both M.R.E. 404(b) and M.R.E. 413. LCpls B and R  testified, LCpl K testified, the Trial Counsel then made potentially improper argument in the findings phase of the court-martial, and the Appellant was convicted of sexual offenses involving LCpl K.

The NMCCA reviewed the case, including the MRE 413 and the improper argument issues, and affirmed the findings of guilty of the sexual offense specifications.  CAAF then granted review of two issues:

I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?

II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

The court answers the first question in the affirmative, and does not reach the second question.

Judge Stucky’s discussion begins by noting that prior to trial, the Appellant moved to suppress evidence of prior incidents of sexual misconduct under MRE 413 and MRE 404(b). The military judge held a hearing and granted the Appellant’s suppression motion for two other incidents, but denied it for a third (the incident involving LCpls B and R). Reviewing this ruling and the CCA’s decision affirming it, Judge Stucky observes that:

Noting that the military judge did not explicitly reconcile Appellant’s alibi evidence with LCpl B’s and LCpl R’s testimony, the CCA determined that “[i]t is implicit in his findings of fact that the military judge concluded that the appellant entered the female Marines’ room earlier than they recall and was apprehended subsequently,” and the CCA “decline[d] to disturb the factual findings of the judge on the grounds that they are unsupported by the record or clearly erroneous.”

Solomon, slip op. at 7 (quoting Solomon, 2012 CCA LEXIS 291, at *12–*13, 2012 WL 3106790, at *4). Appellate courts review “a military judge’s decision to admit evidence for an abuse of discretion.” Slip op. at 7. Moreover, “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Slip op. at 7-8. And even more importantly,

M.R.E. 413(a) provides that in a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant. This court has noted that inherent in M.R.E. 413 is a general presumption in favor of admission.

Slip op. at 8 (marks and citation omitted) (emphasis added). Buried in all this deference and permissiveness are three “threshold requirements for admitting evidence of similar offenses in sexual assault cases under M.R.E. 413: (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under M.R.E. 401 and M.R.E. 402.” Slip op. at 8 (citation omitted). And then the military judge must also balance the probative value of the evidence against the danger of unfair prejudice under M.R.E. 403. But, despite these thresholds and balances, the permissiveness and presumptions abound, because “when a military judge articulates his properly conducted M.R.E. 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion.” Slip op. at 9.

So, with a strict standard of review, a presumption in favor of admission, and articulated findings on the record, how does CAAF unanimously reverse the trial judge’s decision admitting the evidence of the Appellant’s prior misconduct involving LCpls B and R?

. . .the problem is that the military judge altogether failed to mention or reconcile Appellant’s important alibi evidence and gave little or no weight to the fact of the prior acquittal.

Slip op. at 10. Judge Stucky disassembles the military judge’s findings of fact supporting admission of the evidence of the prior misconduct, identifying various inconsistencies, omissions, and “unexplained and unreconciled leaps from the evidence presented to his findings of fact.”  Slip op. at 11. In a dense analysis (that takes just two full pages of the opinion; the middle of page 10 to the middle of page 12), Judge Stucky finds that:

The military judge’s findings of fact are contradictory to record evidence and wholly fail to grapple with the important alibi evidence presented by Appellant. Accordingly, we find that the military judge clearly abused his discretion.

Slip op. at 12. Ouch.

But this unanimous CAAF opinion isn’t over yet. An abuse of discretion in the admission of evidence can be found in clearly erroneous findings of fact or an erroneous view of the law, and Judge Stucky next turns to the military judge’s application of the law in his decision:

The military judge appropriately conducted a full M.R.E. 413 analysis, including balancing under M.R.E. 403, on the record, but the content of that analysis is problematic.

Slip op. at 12. M.R.E. 403 (and its nearly-identical twin, F.R.E. 403) isn’t just about balancing prejudice against probative value; it also considers factors such as waste of time, and Judge Stucky sees the admission of the evidence of the prior misconduct as a big waste of time. He notes that the trial judge observed that “it will take a fair amount of time to hear the testimony” (slip op. at 14), that “admitting the evidence in this case resulted in a classic example of a ‘distracting mini-trial’ of the prior alleged assaults” (Id.), and that “approximately one-fourth of the trial was spent establishing the prior incident” (Slip op. at 15). Reading between the lines, I think Judge Stucky wonders if the Government wasn’t really just trying to re-try the Appellant on the other allegations.

Then, as if to warn the trial counsel that he dodged a bullet in CAAF’s resolution of this case, Judge Stucky remarks that:

Although we recognize that the military judge would not have known when he admitted the M.R.E. 413 evidence that trial counsel would overdo it in this manner, the military judge failed to take actions during trial to limit its overuse, including declining to take judicial notice of the acquittal.

Slip op. at 16 (emphasis added). Get the message?

In the final section of the opinion, Judge Stucky highlights that the Government has conceded that if the admission were erroneous, then it is also prejudicial, and sets aside the findings of guilty (entered contrary to the Appellant’s pleas) and the sentence.

I’ve seen plenty of counsel who were pretty proud of themselves because they convinced a judge to make a bad call, and it’s easy to fall victim to such short-sightedness during a trial. M.R.E. 413 is a powerful tool, but objectivity and perspective is important, particularly for a prosecutor. I know nothing about the trial participants and I haven’t seen the record, but having followed this case through the appellate process I get the feeling that the trial counsel saw this prosecution as a crusade, and the Appellant as a “bad dude who needed to go down.”

For that zealotry, the Government will pay with a rehearing, three years later.

Case Links:
• NMCCA opinion
• Blog post: CAAF grant
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: CAAF decides Solomon
• Blog post: Opinion analysis

• Behenna v. United States, No. 12-802 (pending conference on May 30)

This week at CAAF: The next scheduled oral argument at CAAF is on June 11, 2013.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 22, 2013:

United States v. Marino, No. 20120107

Issue: [Whether t]he charge is invalid under the preemption doctrine of the Uniform Code of Military Justice because it prohibits the charging of General Article 134 when the appropriate charge is the enumerated offense of article 92.

Note: A friend informs me that this case involves a soldier in Germany who pleaded guilty to two specifications of wrongful possession of child pornography in violation of Article 134 (prior to the President’s enumeration of that offense). But there is also a local general order prohibiting possession of such materials. The Appellant argues that the existence of the order preempts the application of Art. 134 to his misconduct.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, May 22, 2013:

United States v. Paris

Case Summary:
A panel of members with enlisted representation, sitting as a special court-martial, convicted the appellant, contrary to his plea, of attempting to access, with the intent to view, child pornography in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The members sentenced the appellant to reduction to the pay grade E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and except for the punitive discharge, ordered it executed.

Issues:
I. Whether the appellant’s entry of terms into a search engine was a “substantial step” toward the commission of the offense.
II. Whether the evidence proved beyond a reasonable doubt that the appellant had the specific intent to access websites containing child pornography.

Last month I noted (here and here) the Supreme Court’s consideration of United States v. Kebodeaux, No. 12-418. SCOTUSblog has a great writeup of the case in its argument preview here. In short, Kebodeaux was convicted by a special court-martial in 1999 of carnal knowledge, arising from a “consensual” sexual relationship with a 15 year old. He moved to Texas and registered as a sex offender, but failed to update his registration when he moved within Texas in 2007. He was arrested in 2008, indicted for violating the federal Sex Offender Registration and Notification Act (SORNA) (enacted in 2006), and convicted.

The district court denied a constitutional challenge to the application of the statute to Kebodeaux, and a panel of the Fifth Circuit affirmed. But then the Fifth Circuit reversed in a sharply-divided en banc opinion, finding that because Kebodeaux was unconditionally released after he served the sentence of the court-martial, the federal government lacked the power to “reassert” authority over him under SORNA when he only moved within a state. The Government then petitioned SCOTUS, which granted review.

So the federal government wants to preserve the constitutionality of SORNA as applied to pre-SORNA offenses. A fairly narrow question, right? Tell me if you think so after you read the following segment from the transcript of the oral argument before SCOTUS on Wednesday, April 17, 2013 (audio here).

Note: If you’re drinking coffee, put down the cup before you read further.

MR. DREEBEN (Deputy Solicitor General): Justice Alito, I think the most helpful way to do that would be for me to progress through a series of examples that illustrate how protecting the public against a Federal sex offender is a legitimate aim under the Necessary and Proper Clause to implement the underlying constitutional authority.

JUSTICE ALITO: Yes.

MR. DREEBEN: So start with a sex offender who commits a sex offense in the military, is tried, court-martialed and sentenced. Subject to cruel and unusual punishment limitations, due process limitations, et cetera, that individual can be incarcerated, placed on supervised release potentially up to life. A condition of supervised release, well-recognized and now mandated by Federal law, is that that individual register as a sex offender. And the reason that that is tied to Federal law is that when an individual violates Federal law it is a legitimate purpose of Congress to protect the public against recidivism by that individual. So that’s the criminal example that I believe is undisputed.

Now, suppose that the Federal Government didn’t actually get the sex offender while he was in the military. It missed the crime, but later information comes to light still within the statute of limitations that shows that while this person was in the military they committed a sex offense. This court in United States ex rel. Toth v. Quarles made clear that that individual can be tried in an Article III court for his criminal violation even though he’s out of the military. It’s enforcing the rules that were impressed upon him at the time while he was in the military.

Now let me give a civil example and then I will bring it right back to this case. Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes. And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they’re out of the military, and we’re going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.

JUSTICE ALITO: When you say in a civil proceeding, you mean?

MR. DREEBEN: Yes, noncriminal. Noncriminal.

JUSTICE SCALIA: So it’s just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.

MR. DREEBEN: Not going to be a criminal punishment that’s imposed at the end of the day.

JUSTICE SCALIA: So just — just more -more likely than not is the test.

MR. DREEBEN: That’s an acceptable level of proof for the civil law.

And if Congress can do that in order to protect the integrity of the military and to promote confidence in the military, then it’s a very small step, if any step at all, to SORNA.

For those with skeletons in their closets, now might be a good time to take your framed honorable discharge certificate off the wall…

Ms. Burke’s arguments in Cioca gained no traction, because in her own words her case was “based on rocky legal terrain,” which I thought the memorable phrase of the day.  Prediction is denial.  Nothing from the argument appeared to leave or create a suitable gem that could regain traction for a grant of a writ of certiorari.  So this litigation is about to be over.

The court: Judges Agee (M/Bush2), Niemeyer (M/Bush1), and Thacker (F/Obama).  They were a hot bench.  Although Judge Thacker did not ask any questions she was clearly attentive.

As best we could tell Ms. Burke was the only person involved in the litigation who was there.  We had thought there would be a number of supporters and media.

Just as Ms. Burke began the argument with her first emotional pitch of the day Judge Agee asked about the Coast Guard litigants.  Ms. Burke argued, “it was a complex question, that there had been a declaration of war, and that her clients had told her they were subject to the UCMJ,” or words to that effect.  However, she conceded they were likely not proper parties.  If the court does as predicted and denies the appeal, the answer to the question becomes irrelevant.  Ms. Burke still does not get it that a declaration of war and an authorization to use military force comes from Congress, but that an authorization to use military force is not a declaration of war.  Also, it is true that active duty members of the Coast Guard are subject to the UCMJ.  But that doesn’t mean they are in the Navy and thus the Department of Defense.

The judges were focused about separation of powers and the abstention doctrine.  That was the bulk of the questions.  Much reference was made to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S. 296 (1983).  But at times Ms. Burke herself wandered into arguing matters that were APA or  injunctive relief related and other type claims not before the court.  The DOJ attorney took less than five minutes to make two points:  Ms. Burke had conceded everything, leaving some minor missed deadlines within DoD and some ignoring of Congressional directives as fault for the cause of action, and the APA related irrelevant arguments.  As counter-concessionary argument, Ms. Burke told the court DOJ had conceded everything she was raising, “at page 20 of their brief.”

Ms. Burke argued the case was unique (interspersed with emotional appeal) and in particular argued that the alleged offenses were not incident to service.  She also argued that money damages was a least intrusive remedy compared to injunctive relief.  To which Judge Niemeyer offered the idea that a Soldier hitting another in the jaw commits a crime, but the Secretary of Defense is not liable for that in his personal capacity for money damages.  Essentially Judge Niemeyer pointed out that there are processes in place to discipline and take care of these issues.  (There was no discussion or retort that current events show the in-house remedies ineffective and proof of the claim.)  Again the point was made that the litigants were asking for money not injunctive relief.  Judge Niemeyer acknowledged in some detail the sexual assault problem, which is where much of the discussion about the current fiascos came up.  (My Liege and I disagree a little on this.  His position, I think, is that the current matters are not relevant or evidence in the Cioca case.  My position is that while not formally announced, could not the court take appellate judicial notice of the ongoing crisis.)

The bulk of the questions highlighted concern that the courts were being asked to manage the day to day activity of the military.  As a basic principle courts don’t manage the day to day business of the military.  Questions emphasized that Congress is taking action, the military is taking action, and the President is taking action.  But, emphasized the questioners, Congress has not directed any judicial remedy in the federal courts relevant to the case before them.  The “go talk to Congress,” meme was clear if not directly said.  The judges’ views follow quite well this line from Stanley, “the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”  Stanley, 483 U.S. at 683.  And reading a little further into Stanley, and presaging DOJ’s counsel.

Similarly irrelevant is the statement in Chappell, erroneously relied upon by Stanley and the lower courts, that we have “never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”  As the citations immediately following that statement suggest, it referred to redress designed to halt or prevent the constitutional violation rather than the award of money damages.  Id., (citations omitted).

Ms. Burke raised the point that abstention is a prudential doctrine.  Again she was faced with questions that the Supreme Court has narrowed any exceptions to the doctrine, rehearsed the aversion to running the military on a day to day basis, and firmly restated the absence of a specific statutory remedy.  Toward the end of her argument Ms. Burke acknowledged that even if the case proceeded there may be “causation” problems in proving the case.

During Ms. Burke’s rebuttal there was an odd (I’ll call it odd) interchange where Judge Agee quoted from Dean Erwin Chemerinsky, (now at UC-Irvine, ML).  The judge asked her that a person such as Chemerinsky likely to be on her side.  And then he read a quote in which Chemerinsky is purported to have said that no Bivens action can ever lie for such military related cases.  The import being that even Dean Chemerinsky would deny the appeal.  To which Ms. Burke testified that she had talked to the Dean and he agreed with her position.

I commented on my own reactions to seeing Invisible War last year.  I noted a comment made by Ms. Kearl, a AAUW legal person involved and helping with the litigation of Cioca v. Rumsfeld.  The tenor of her remarks was that they did not expect to win.  And, she basically said, “She (meaning the attorney) doesn’t intend to win.  This is done for the media attention.”  The media attention is there, the litigation is not.  However, the litigation has certainly contributed to the effort to persuade Congress to act, even if current events had not been at the fore — “See Congresswoman, the courts won’t help us, please create a remedy, change the law, or something, the courts are closed to us, unbar the door,” or words to that effect.

Judge Niemeyer, observed that the D.C. court had just dismissed the Klay, et. al. v. Panetta, et. al.  Here is a link to the memorandum opinion of Judge Amy Jackson dated 7 February 2013, dismissing that case.

Accordingly, the Court will grant defendants’ motion to dismiss because Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs under these circumstances and plaintiffs have not overcome defendants’ entitlement to qualified immunity.8

(n.8.  While plaintiffs offered to amend their complaint during oral argument, Tr. at 31–32, they have never filed a motion to amend attaching any amended complaint, much less one that could – after the several chances they have had already – cure the problems at the heart of this action).

JOC, Judge Agee did ask Ms. Burke why neither Panetta nor Hagel were being sued, no good answer.

We will link to the audio when available – probably Tuesday.

Affirmative.  There is more to do on a road-trip than 25 minutes at the Fourth, besides it was an awesome top down day.  :-)

Here’s a link to some of the posts about TIW and Cioca.

http://www.caaflog.com/?s=cioca

http://www.caaflog.com/?s=cioca+invisible+war

The argument lasted only 25 minutes, with DOJ using only five of its alloted 20 minutes.  I believe that Phil will provide a full report later, but the bottom line is that the plaintiffs/appellants’ arguments gained no traction before the Fourth Circuit.

The Department of the Navy (DoN) is revising its Rules of Professional Conduct and procedures for receiving, processing, and taking action on complaints of professional misconduct made against attorneys practicing under the supervision of the Judge Advocate General of the Navy (JAG). The revision to this part generally aligns with recent changes to the American Bar Association Model Rules of Professional Conduct. The revisions clarify when an attorney shall reveal confidential information and when such disclosure is discretionary, and allows for covered attorneys to make reasonable disclosures necessary to ensure compliance with the Rules of Professional Conduct. The revision contains administrative corrections throughout.

Read the proposed new rules and submit your comments at this regulations.gov link. Comments are due by July 1, 2013.

WHERE THE ARTICLE 134 CHILD PORNOGRAPHY SPECIFICATIONS OF WHICH APPELLANT WAS CONVICTED DID NOT ALLEGE THAT THE IMAGES DEPICTED ACTUAL MINORS AND WHERE THE MILITARY JUDGE ADVISED APPELLANT DURING THE PROVIDENCE INQUIRY THAT “THERE IS NO REQUIREMENT THAT THE IMAGES IN THIS CASE INCLUDE ACTUAL IMAGES OF MINORS,” IS THE MAXIMUM AUTHORIZED CONFINEMENT FOR EACH SPECIFICATION LIMITED TO FOUR MONTHS?

United States v. Finch, __ M.J. __, N0. 13-0353/AF (C.A.A.F. May 16, 2013).  AFCCA’s unpublished decision in the case is available here.  The issue is similar to that in AFCCA’s recent published opinion in Slagle, which we noted here.

Insert familiar disclosure here.  I now have a 100% grant rate for supps using the phrase, “baby Wookiee.”

A PDF of the Article 120 (2012) maximum punishments.

A PDF of the complete revised Military Rules of Evidence.

JSC information

And audio of last week’s oral argument at the NMCCA in United States v. Loya (discussed here) is available at this link.

Chairman McKeon Statement on Allegations of Further Sexual Misconduct in the Military

http://talkingpointsmemo.com/news/soldier-in-sexual-assault-office-accused-of-abuse-pimping-more.php?m=1

ET2 Lubich was convicted, contrary to her pleas, by a special court-martial composed of members with enlisted representation of one specification of attempted larceny, one specification of wrongfully and knowingly transferring, possessing, or using a means of identification of another person, and one specification of impersonating a commissioned officer with the intent to defraud, in violation of Articles 80 and 134. She was sentenced to confinement for 45 days, forfeiture of $1,300 pay per month for two months, reduction to pay grade E-3, and a bad-conduct discharge.

During the trial, records of internet activity from the Appellant’s Navy-Marine Corps Intranet (NMCI) account were introduced through a Naval Criminal Investigative Service (NCIS) cyber forensics examiner. The NCIS examiner testified that he prepared two reports from six CDs of data provided to him by an unidentified NMCI analyst. The trial defense counsel objected to the introduction of the NCIS examiner’s reports on foundation and confrontation grounds The trial military judge denied the defense objections, and admitted the NCIS examiner’s reports, leading to the conviction.

The NMCCA reviewed the case and rejected the Appellant’s assignments of error on confrontation, hearsay, and authentication grounds. CAAF then granted review to determine:

Whether the military judge erred by overruling defense counsel’s foundation and authentication objections and admitting computerized data evidence gathered by an unnamed Navy-Marine Corps Intranet (NMCI) analyst who used an unidentified process with unknown reliability to collect data related to Appellant’s network user activity.

Judge Erdmann begins his discussion with consideration of the meaning of “authentication”:

“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.E. 901(a). Evidence may be authenticated through the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). M.R.E. 901(b)(9) permits evidence resulting from a “process or system” to be authenticated via “[e]vidence describing [the] process or system used to produce [the] result and showing that the process or system produces an accurate result.”

Lubich, slip op. at 9. But he continues with an important factual issue:

Here the Government claimed that the data contained on the six CD-ROMs was taken from Lubich’s NMCI Internet accounts. During argument on the motion, the military judge invited the defense counsel to elaborate on the authentication objection. Defense counsel responded, “It’s my understanding that the data that Mr. Schmidt analyzed came from Petty Officer Lubich’s computers at NSAWC. I mean, I don’t think there’s any dispute about that.” This is significant as the defense recognized that the data was from Lubich’s Internet accounts, but nevertheless argued that it was necessary to have direct testimony from NMCI personnel as to the process utilized by NMCI to collect the data.

Slip op. at 9 (emphasis added). Oops. Hard to complain about a lack of authentication after you’ve conceded the authenticity… I’ve often been glared at by opposing counsel (and by a few judges) for being unwilling to concede facts during trial (and, for that matter, for filing lengthy briefs in order to establish a record of the facts that I consider important; but that’s gotten me more than mere glares). This is a good example of why I try to avoid concessions.

Judge Erdmann continues with further discussion of authentication and the mere “prima facie showing” needed to prove that “the item is what the proponent claims it to be. . .” Slip op. at 11 (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 901.02[3], at 901-13 to 901-14 (Joseph M. McLaughlin ed., 2d ed. 2003)). Significantly (I think), Judge Erdmann continues with Weinstein’s explanation that “[i]n general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues. If a computer processes data rather than merely storing it, authentication issues may arise.” Slip op. at 12 (quoting Weinstein § 900.06[3], at 900-68). My gut doesn’t agree with this conclusion at all, since data storage and integrity issues are significant considerations when making any conclusions about the identity of the contents of an information system.

However, Judge Erdmann finds that the witness’ testimony was adequate to authenticate the data used to generate the reports. The witness explained how the data was collected (based only on familiarity with the process; someone else did the collection), and he testified that he verified the process with NMCI. So:

The Government therefore made a prima facie showing of authenticity by presenting evidence sufficient to allow a reasonable juror to find that data on the six CD-ROMs was data from Lubich’s Internet accounts. [The witness’] testimony established that NMCI transferred data stored on the computers to the CD-ROMs utilizing an automated process rather than analyzing or manipulating the data.

Slip op. at 13. Judge Erdmann notes that “once this preliminary standard for reliability was established, the defense had the opportunity to attack the perceived weaknesses in the case through cross-examination of [the witness],” and that the Defense did so. Slip op. at 13-14.

Finally, Judge Erdmann explains that the court:

decline[s] to adopt Lubich’s proposal that we develop a detailed authentication analysis for computer data. There are numerous scenarios in which this issue will arise and we see no benefit in attempting to craft a “standard” test to analyze all computer data situations. We will continue to rely on the military judge’s discretion to determine authenticity.

Slip op. at 14. A footnote distinguishes a case relied on by the Appellant, United States v. Harris, 55 M.J. 433 (C.A.A.F. 2001), which utilized the “silent witness” theory to address the authentication of a viodeotape. Judge Erdmann explains that “That situation differs from this case where Lubich concedes that the data was taken from her Internet account.” Slip op. at 14 N.8.

In my argument preview I noted that:

Appellate courts are incredibly lenient when it comes to trial-stage rulings on the admissibility of evidence, and will only reverse where there was an abuse of discretion by the trial judge in the form of clearly erroneous findings of fact or a decision based on an erroneous view of the law. Because of this leniency, and the narrowness of the granted issue, I predict a tough oral argument for the Appellant, followed by a quick affirmation.

I didn’t predict the significance of the Appellant’s trial-stage concession that the data came from the computers she used, but it’s a significant basis for CAAF to find no abuse of discretion.

Case Links:
• NMCCA opinion
• Blog post: Machine generated printouts are not statements
• Blog post: CAAF grant
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: CAAF affirms in Lubich
• Blog post: Opinion analysis

A military judge found SSGT John Russell guilty of pre-meditated murder yesterday, AP (via WaPo) coverage here and Tacome News-Tribune coverage here. Sentencing to determine whether Russell will be sentenced to life (with possibility of parole) or LWOP begins this week.

Judge to hear a dozen motions in BGEN Sinclair court-martial this week reports the Fayetteville Observer, here. The four day hearing features multiple UCI claims. Trial is currently scheduled for June 25, 2013.

• BE SAFE Act, co-sponsored by Reps. Tsongas and Turner was submitted on May 8, 2013.  Links to the release and the bill.
• CNN’s State of The Union had Congresswomen Tulsi Gabbard (D-HI) and Tammy Duckworth (D-IL) on yesterday to discss military sexual assaults and changing the MilJus system, here.
• WaPo angle on the recruiter portion of the sexual assault problem in the military, linking the Lackland MTI cases and the issue du jour, here.
• Roll Call says, here, that “Pressure Building to Address Military Sexual Assault in Defense Bill.”

Today is the 50th Anniversary of Brady v. Maryland, 373 U.S. 83 (1963), the case with so much promise, yet so willfully ignored by police and prosecutors nationwide, and courts often let them get away with it.

Mr. Hall is author of:

Search and Seizure, 4th Edition.  Lexis publishes the book and calls it, “Search and Seizure, Third Edition is the only book of its kind written by an active trial lawyer for other active trial lawyers and judges.”

Update 19 May 2013, from the New York Times Sunday Review.

And maybe putting some teeth into it.  Former prosecutor arrested for Brady violations.

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.

App. Br. at 13-14. The brief notes that the military judge did not apply a balancing test or make findings of a compelling or substantial need for the presence of the advocate. Citing to state law cases, the Appellant argues that three factors apply to the provision of an accommodation like the advocate used in this case: First, there must be a clear finding of necessity; second, the defense should be given the opportunity to suggest alternatives; third, the choice of a support person matters (with a close relative a preferred selection, in order to appear as family support and not as bolstering or vouching). App. Br. at 16-18. Notably, the Appellant’s brief implicitly describes this as a case of first impression for military law, because the only similar precedent (United States v. Romy, 32 M.J. 180 (C.M.A. 1981)) was decided before the establishment of the rules allowing for the remote live testimony of a child in M.R.E. 611(d). But the Appellant’s brief notes the language of M.R.E. 611(d) that requires a military judge to make specific findings prior to authorizing remote live testimony. The brief also notes that M.R.E. 611(d) applies to a “child,” which is someone under the age of 16 at the time of the testimony, while AW was almost 18 years old at the time of her testimony in this case.

The Appellant’s brief also raises other issues, such as the failure of the military judge to conduct a voir dire of the members prior to permitting the advocate to sit next to the victim during her testimony. The brief notes that voir dire would help determine if the members would be affected by the presence of the advocate, or even if any of them knew the advocate (and a footnote observes that the record is silent on this point). App. Br. at 21. Further, the Appellant contests the adequacy of the instructions given to the members by the military judge, noting that the could be read to imply a judicial “endorsement” of the advocate’s presence, and that he “failed to thoroughly instruct the members on how to properly evaluate the credibility of AW,” using the standard witness credibility instruction with a comment that “you will evaluate the credibility of [AW's] testimony in the same way you will any other witness.” App. Br. at 23. The Appellant’s brief concludes that all of these factors combine to make the presence of the victim advocate “inherently prejudicial” requiring reversal. App. Br. at 23. Notably, the Appellant’s merits brief does not use the term “structural error” (which requires reversal), and the Appellant’s reply brief  appears to disclaim any argument for structural error.

The Appellant’s alternative argument – of a non-harmless constitutional error – is based on the position that the presence of the advocate eroded the Appellant’s presumption of innocence. The brief highlights two factors: age and enhanced credibility. First, the brief highlights that “the common thread of the state cases upholding witness attendants is a child of tender years,” but AW was nearly 18 at the time of her testimony making the accompaniment of the advocate appear as vouching for the credibility of AW rather than merely assisting a tender and fragile witness. App. Br. at 24. Second, the brief states that the presence of the advocate “enhanced the credibility of AW,” because she was a professional vice, say, a family member whose presence could have been discounted by “familial loyalty.” App. Br. at 25. Additionally, the brief claims that the military judge compounded this credibility enhancement by referring to the advocate as an “advocate,” because all of the members had received typical DoD sexual assault training and:

in this context, the term “advocate” is synonymous with “victim advocate”. In today’s times, this phrase stirs passions that are likely to invade reason and cool, rational judgment of guilt or innocence. The result is the erosion of the presumption of innocence and an unfair trial.
. . .
The fact that [the advocate] stayed alongside AW, from appointment to trial, tacitly demonstrated her belief in AW’s cause. And that belief, to a panel of members, increased the chances of conviction on grounds or other circumstances not adduced as proof at trial.

App. Br. at 26-27 (marks and citation omitted). For these reasons, the Appellant argues that the fairness of the fact-finding process was undermined, and CAAF should set-aside the findings and sentence and authorize a rehearing.

A final section of the Appellant’s brief discusses the application of 18 U.S.C. § 3509(i), which authorizes an “adult attendant” to accompany a child (under 18) witness during testimony in a judicial proceeding. The CCA noted this statutory provision in its decision. But the Appellant notes that CAAF previously found, in United States v. McElhaney, 54 M.J. 120, 125-26 (C.A.A.F. 2000), that this statute was limited to the district courts and does not apply to courts-martial. The Appellant also notes that this statute requires that the attendant be videotaped during the testimony, which was not done in this case.

The Government’s response makes four arguments:

First, allowing the presence of a victim advocate is not structural error and this Court should not further expand the small class of structural errors. Second, under pertinent regulations, a victim advocate is not an agent of the Government, but rather represents a victim, and her sitting next to a child victim of sexual assault during testimony does not sound in due process. Third, the Military Judge properly allowed a silent, nontestifying victim advocate to sit beside the testifying Victim because the Victim demonstrated that she would otherwise unable to give meaningful testimony. Finally, even if it was error, no prejudice resulted given that the Victim Advocate did not testify, and there is no evidence in the Record to suggest that she made any gestures or physical contact with the Victim, or that she impacted the Victim’s testimony in any way, and because the Military Judge exhaustively instructed the Members not to consider the presence of the victim advocate as an endorsement of the Victim’s credibility or any other matter.

Gov’t Br. at 9-10. On the first point, the Government uses the existence of 18 U.S.C. § 3509(i) to show that “not only is this practice not ‘inherently prejudicial,’ but it carries little risk of actual prejudice so long as the attendant is properly cautioned and the fact finding panel is properly instructed.” Gov’t Br. at 12. This is pretty convincing and, as discussed below, I think the Appellant’s “inherently prejudicial” argument is weak.

The Government’s next argument takes two parts. First, the Government’s brief explains that “bolstering and vouching are not constitutional issues. Expert testimony bolstering the credibility of a witness, for example, is tested for non-constitutional evidentiary error.” Gov’t Br. at 14 (citing United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010)). Further, vouching is generally an action of a party to (improperly) boost the credibility of a witness, and the Government argues that the victim advocate is separate from the Government, representing “the Victim, not the United States qua litigant.” Gov’t Br. at 14. In support of this point, the Government’s brief notes the Air Force case of LRM v. Kastenberg, No. 2013-05, 2013 CCA LEXIS 286 (A.F. Ct. Crim. App. Apr. 2, 2013) (certified by the AF JAG to CAAF). But even if the advocate is an agent of the Government (and I think that is the case), the Government still argues that the constitutional claim must fail, and any error should be tested with a non-constitutional standard. However, the brief takes a brief diversion into the requirement under 18 U.S.C. § 3509(i) that the witness attendant be videotaped:

Although Appellant now claims that the Military Judge failed to sua sponte ensure that the victim advocate’s presence next to the Victim was videotaped (see Appellant’s Br. at 32), and thus somehow “frustrate[s]” appellate review, Appellant never made that objection at trial, hence forfeiting any objection on appeal absent plain error.

Gov’t Br. at 16. This is the worst point of the Government’s otherwise strong brief. Not only did the trial judge not rely on § 3509(i) as the basis for permitting the advocate, the Appellant’s brief highlights CAAF’s prior finding of § 3509(i) inapplicable to courts-martial. But the CCA cited the statute in support of the procedure used in this case, and so too does the Government in its brief (“The use of witness attendants for child victims of sexual assault is commonly practiced throughout the United States.” Gov’t Br. at 11 (citing, inter alia, 18 U.S.C. § 3509(i))). I don’t really have any qualms with the Government’s appellate-stage citation to an inapplicable procedural rule as persuasive authority to support using a similar procedure in a court-martial. But to then say that the Appellant forfeited any claim that the full scope of that procedural rule should be considered before it’s to be given any real persuasive value, because he didn’t object to the non-application of the full scope of the rule at trial (where that rule wasn’t even being applied, because it’s inapplicable), is really, really pushing it (if not entirely paradoxical). After all, we’re talking about reasons why the federal rule is persuasively analogous, not whether it was properly applied.

The Government’s brief then tackles the presence of the advocate from a procedural standpoint, citing the military judge’s authority to control the mode and order of interrogation and presentation of witnesses and evidence under Military Rule of Evidence 611, and the judge’s responsibilities as the presiding officer of the court-martial under Rule for Courts-Martial 801. The Government characterizes the presence of the advocate as a matter within the discretion of the military judge based on “the authority to craft remedies to contingencies encountered during trial.” Gov’t Br. at 18. It was merely a “courtroom accommodation.” Id. And, the Government argues, “the accommodation made here was reasonable in light of both R.C.M. 801 and Mil. R. Evid 611, and tended to promote the purposes of the UCMJ and the Manual for Courts-Martial.” Gov’t Br. at 19.

This argument is based in part on the fact that there are procedures for the presence of an “adult attendant” for child witnesses in federal law (§ 3509(i)) and in many of the states, and in part on “the finding that AW was not able to testify but for the accommodation.” Gov’t Br. at 20. Later the brief explains: “Based on his observations of AW, the Military Judge made a “specific finding[]” that “[AW] was not just crying during her testimony, it was her completely unintelligible and unable to speak because she was crying.” Gov’t Br. at 22. I don’t have the record, but from reading the briefs I feel like calling this a “specific finding” is a giving it too much weight. It seems to have been more of an observation. Though, when a military judge is making observations on the record, one could certainly say that he’s making “findings.” Similar things are said about senior officers; when they make “observations” about their “desires,” those are what’s called “orders.” So I’m interested to see how CAAF treats the military judge’s observation about AW being “completely unintelligible and unable to speak because she was crying.”

The final portion of the Government’s brief explains why, even if the presence of the advocate was error, it does not cause material prejudice to a substantial right of the Appellant, as required under Article 59(a). Because the advocate was silent, the Appellant had a full opportunity for cross-examination, and the military judge provided instructions, the Government sees no prejudice. Gov’t Br. at 28-30. The brief then does a peculiar application of the five-factor test from Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), to the presence of the advocate. But Van Arsdall was about limiting cross-examination thereby infringing the right of confrontation, and the advocate didn’t testify at all, so I’m missing the point of this analysis.

A reply brief tackles a few different subjects. First, the Appellant highlights that under the UCMJ, a child is someone under the age of 16:

Appellant does not contend that witness attendants are always inherently prejudicial. This point must be stressed. In the military justice system, witness attendants may be perfectly appropriate when assisting children under the age of sixteen.

Reply Br. at 2. But this line is very artificial when the UCMJ and Manual for Courts-Martial don’t contemplate witness attendants at all. However, a clearer argument follows:

The Government, not Appellant, therefore, needs this Court to do something that other courts have not: find that a victim advocate can be seated right next to a complaining witness who the governing jurisdiction no longer considers a child.

Reply Br. at 3. This seems like a key point to me. If the presence of the advocate was appropriate (i.e., within the discretion of the military judge, as the Government claims), then wouldn’t it be just as appropriate for someone who is 18, or 28, or 80, assuming they were having trouble getting through their testimony?

The reply brief also tackles the Government’s application of M.R.E. 611(a), granting control over the mode and order of witness testimony to the military judge:

The Record demonstrates that M.R.E. 611(a) is a post hoc justification offered by the Government for the first time on appeal. The military judge did not cite Rule 611(a) when he issued his ruling. Neither did the Government. The Government invokes that rule now to try to save a conviction that resulted from a prejudicial trial practice. For all these reasons, this Court should look beyond M.R.E. 611(a) in examining this issue.

Finally, even if M.R.E. 611(a) was dispositive, which it is not, the military judge made no findings to support its application. In United States v. Collier, this Court held that a military judge abused his discretion in excluding bias evidence when he “made no findings about the likelihood that [the witness] would suffer from undue embarrassment or harassment as a result of cross-examination or the presentation of bias evidence.” In so holding, this Court noted that, “[l]ike the identical federal rule, M.R.E. 611 ‘calls for a judgment under the particular circumstance whether interrogation tactics entail harassment or undue embarrassment.’” Here, the military judge made no judgment that A.W. needed protection from “harassment” or from “undue embarrassment.” Mil. R. Evid. 611(a)(3). He made no judgment that the victim advocate was needed to “avoid needless consumption of time[.]” Mil. R. Evid. 611(a)(2). And he made no judgment that the victim advocate was needed to “make the interrogation and presentation effective for the ascertainment of the truth.” Mil. R. Evid. 611(a)(1). Under Collier, this utter lack of judgment is error. Because Appellant was prejudiced as a result, this Court should set aside the findings and sentence and authorize a rehearing.

Reply Br. at 5-6 (citations omitted). This back-and-forth over the existence or adequacy of findings on the record to support the judge’s decision to allow the advocate to sit with the witness will undoubtedly play a prominent role during the oral argument. As discussed above, I’m interested to hear the court’s treatment of what was said on the record.

Finally (and I’ve skipped a bit in the middle), the reply brief tackles the Government’s argument that even assuming error, there was no prejudice:

Assuming for the sake of argument that the Government is correct, and that AW would not have been able to testify without this accommodation, this Court should cease its prejudice analysis here. The Government concedes that the error directly contributed to Appellant’s conviction by enabling the testimony of the complaining, key Government witness. (Id.) The Government styles this reality as “due process and the administration of justice[.]” (Id.) But due process for whom?

Under the Fifth Amendment, it is a “person” who shall not be deprived of “life, liberty, or property, without due process of law[.]” U.S. Const. amend. V (emphasis added). This right ensures some basic protections for an accused against the awesome power of the government. It does not ensure a conviction.

Reply Br. at 13-14 (emphasis added). I once saw a trial-stage brief where a trial counsel argued that the Government, just like an accused, has the right to a fair trial. The Appellant’s reply brief makes it clear that the Constitution’s guarantee of due process of law is a right of the accused that shields him from the awesome power of the sovereign, and not a guarantee of the ability of the state to impose its will upon the citizenry.

It’s hard not to view this case through the lens of the current focus on sexual assault prosecutions in courts-martial, but there are deeper issues at stake. In the absence of clear Congressional or Presidential rulemaking for the provision of witness attendants at courts-martial, I don’t see CAAF allowing such a remedy to accommodate a non-child witness whose tears drown out her (presumably well-prepared) testimony, particularly in the absence of clear factual findings on the record by the military judge. I think that the court will ask both sides to address the absence of clear rule permitting such a remedy (and if MRE 611(a) is enough, then where the age-limitation is to be found). I also think that these factors give the Appellant a strong case for error (never mind other issues such as the failure to voir dire the members about the advocate, and the always fertile ground of instructional error). But I see the Appellant’s argument that it’s “inherently prejudicial” as a steep uphill battle when similar procedures are used in so many other jurisdictions. Rather, the Government’s position that AW would not have been able to testify absent the accommodation will be seen, I think, as a significant concession towards a more-traditional prejudice analysis.

The Government is in something of a catch-22 in this case. On one hand, the presence of the advocate cannot be superfluous, because then such an unusual remedy would not have been justified (and again, the paucity of findings doesn’t help). On the other hand, the more essential the advocate’s presence, the greater the prejudice resulting from her presence being found erroneous (because AW was the essential witness for the rape specifications). In my mind I can hear the Government’s counsel being asked, “if we find it was error, don’t we then have to find it prejudicial under these facts?” I’m not sure how I’d answer such a question were I the Government’s counsel…

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