A recent unpublished and per curiam decision by a three-judge panel of the Navy-Marine Corps CCA raises a serious concern: A military judge’s use of a prosecutors’ case tracking system.
On 9 October 2014, the appellant signed a PTA, agreeing to plead guilty to four specifications of possession and one specification of receipt of child pornography before a military judge. In return, the CA agreed to suspend any awarded confinement in excess of two years. While preparing for trial, the judge logged into Case Management System (CMS), the Navy’s online court-martial management database. Looking for confirmation of the appellant’s arraignment, the judge accessed a tab where court-martial milestone dates are recorded. While scanning that screen, the judge inadvertently stumbled upon a data entry he recognized as a PTA term capping confinement. The judge exited CMS and notified trial and defense counsel of the accidental disclosure via email.
United States v. Torres, No. 201500117, slip op. at 2 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.) (emphases added). The appellant in Torres pleaded guilty to numerous offenses pursuant to a pretrial agreement, and then on appeal asserted that his trial defense counsel was ineffective for failing to thoroughly investigate the military judge’s actions or move for recusal. The CCA rejects the claim, finding neither deficient performance nor prejudice. But the opinion notes that:
the military judge invited voir dire from both counsel. TDC began his voir dire by apologizing that he had not seen the data entry at issue, because he did not have access to CMS. The record contains no indication that TDC requested access to CMS or a screen shot or printout of the entry. The judge recalled the CMS entry being five or six words announcing that parties had reached a PTA and the maximum sentence.
Slip op. at 2-3 (emphasis added).