The audio of the oral argument in United States v. Salyer is available on line here.

12 Responses to “Salyer argument audio”

  1. RY says:

    Suprised Gov’t tried to argue there was no foul in accessing the judge’s personnel file.  He was getting torn up on that. 
    I’m always amazed by how adamant appellate govt is to defend every error rather than focus on prejudice in cases like this.  You lose so much credibility and give away so much valuable time with the decision makers. 

  2. Anon says:

    Articulate the legal error in the trial process.  See.  Sort of hard to concede an error when you cannot articulate it.

  3. Babu says:

    Anon:  Was your post meant to be a haiku?  Or are you just incoherent?    

  4. Some DC says:

    Teh Court discussed structural error.  At that point the Government has to show no error or throw the towel in. 

  5. Michael Lowrey says:

    Probably not the question the government wanted to hear in relationship to accessing the judge’s personnel file and rendering the error harmless: From Chief Judge Baker at about the 27:00 minute mark of the recording “Do all of the facts include the government’s position today as to whether this is appropriate conduct?”

  6. Cap'n Crunch says:

    Three observations from the argument: 1) CAAF was clearly bothered by the government’s actions — expect a strong and clear rebuke of government actions regardless of outcome; 2) lots of back and forth with respect to substitute military judge’s actions remedies whether they were followed, whether they were sufficient, and whether or not the error was structural (meaning instant reversal); and 3) not sure caaf wants to dismiss with prejudice– I get the sense they don’t want to let cpl salyer off the hook for the crime (and understandably so), and I saw a lot of questions about whether alternative remedies could be taken.  Will be interesting to see the outcome.

  7. Tami says:

    You should know you’re in trouble when the judge starts asking whether you violated standards of common decency by snooping through someone’s personnel file.
    I think dismissal is the only way to go on this case–given the Government’s dirty hands, how can it be given a second chance, especially when, if the original judge hadn’t been forced to recuse himself, the wife wouldn’t have been allowed to testify and there would probably have been a mistrial over the TC referring to an exhibit not in evidence?  Anything less sends a weak message about the fairness of our system, and potentially encourages TCs to keep doing this.  Voir dire would have been sufficient to address the judge’s alleged bias.  The snooping through personnel records wasn’t necessary, and certainly gives the appearance that this was simply an intimidation tactic.
    Also, I think CAAF made a great point about the lack of relevance of the judge’s wife’s age to the 16 v. 18 issue–there were plenty of images where the children were obviously children, so what does it matter that the judge’s wife was 17 when they got married?

  8. Ex TC says:

    I have no connection with the case, but was it ever a defense in this case that the images were of children between 16 and 18, thereby turning CP into legal porn? Most CP cases are not those type of images. The members convicted anyway so I doubt it.   
    So sad that anyone with one-tenth a litigation brain at the trial court level couldn’t have stopped this train wreck by saying “well we disagree with judge, happens all the time, does it change anything? Seems not. Lets convict on CP images regardless of ruling. Next case please.” I do hope CAAF dismisses with prejudice, stupidity is often its own reward. Trial shop earned this one. 

  9. Contact Lawyer says:

    I am just a contract lawyer, but seems to me that TC could have just voir dired without the personnel record and proved it’s case without the spousal communication and got a conviction without error. With the record as I read it, the best remedy is dismissal with prejudice.

  10. Roger Mattioli says:

    RY, the government does not always attempt to defend every error.  Often, but not always.  In Lewis, at oral argument, the government did not defend the TC/SJA’s actions, and focused solely on the fact that Lewis received a fair trial from a subsequent impartial military judge.  Look how well that turned out for the government.  Maybe they figured they’d go the other way on this one…  I see this one getting dismissed with prejudice.  CAAF’s way of saying, “we warned you guys before…”

  11. Tami says:

    Yes, TC could have voir dired without the personnel record.  And it appears some of the images were debatable over the age.

  12. Brian Mizer says:

    I will have to see if I can dig up my copy of the audio for the Lewis argument.  My recollection is that the government did not concede that the prosecution’s conduct was error, although it did repeatedly state it was reprehensible.  I believe that is why the Court included footnote 4 in Lewis.  I seem to recall Judge Baker asking nearly identical questions as to why the government would not concede error.  The government may have boxed themselves in.  If they can’t even concede what happened in this case was out of the ordinary course of business for a Marine court-martial, what other choice does the Court have than to send a message that it is not?
    RY hit the nail on the head.  Government should have appeared in sackcloth and ashes, but argued simply a fair trial was had by all.