CAAF’s docket for Friday shows the following certification:

No. 14-5005/AF. U.S., Appellant v. Lieutenant Colonel Todd E. MCDOWELL, Appellee and Senior Airman Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:



The military judge granted a Defense motion to depose the alleged victim after the victim did not complete her testimony at the Article 32 pretrial investigation (she walked out after two hours of cross examination, having been interviewed by defense counsel for three hours the day before). The Government sought a writ of mandamus ordering the military judge to reverse himself. The AFCCA denied the Government’s petition in this order.

I discussed the AFCCA’s ruling in this post, where I wrote:

I can’t help but wonder why the Government wants to stop this deposition. What could the Government possibly have to lose? While the defense counsel’s five hours of interview and examination of the alleged victim certainly seems like it would be enough, there’s no indication that the defense was abusing the process just to harass the victim (besides the ethical issues that would raise, I’d suspect the 32 IO would have put a stop to any of that). And the deposition officer (something I’ve been before) will exercise reasonable control over the proceeding.

I’m reminded of something I referenced in my argument preview of United States v. Solomon, No. 13-0025/MC, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page):

In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: “The United States wins its point whenever justice is done its citizens in the courts.”

Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).

So true.

This case is the ninth certification from the Air Force on CAAF’s docket this term (I listed the other eight at the bottom of this post).

It’s beginning to look like the Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.

53 Responses to “Air Force JAG files a certificate of review of the AFCCA’s denial of a Government effort to stop a deposition of an alleged victim of rape”

  1. Phil Cave says:

    LOL, When has it never been:
    “Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.”
    It’s just becoming more obvious outside the box.  Zach, didn’t you know it’s un-american to challenge a conviction, or how they want to do business.  Read some of their appellate briefs.

  2. Bill Cassara says:

    If you challenge the AF it is only because you don’t know what you are talking about, and don’t understand the rules of evidence. Convictions are expected, and if they don’t happen, people get upset.

  3. SFC V says:

    I’ve said it before but I still have to ask what needs to be discussed that couldn’t have been in the previous 5 hours?  Why isn’t the deposition limited to that which wasn’t previously addressed?  If defense counsel goes back over everything that’s already been covered I would say that the process is being abused. 

  4. DCGoneGalt says:

    Going over under oath what has been covered in an interview is not an abuse of process so long as the questions are relevant.  That being said, this defense counsel seems to be lucky to get a pre-Art 32 interview.  I was surprised when I read the original post about the judge’s order because I could understand the order if the issue was the need for a more lengthy cross during the Art 32 if there was no pre-Art 32 interview.  Luckily, this pesky problem will eventually work itself out when victims are able to stop testifying at Art 32s at the end of the year.
    Eventually the AF may begin to submit a CD to AFCCA/CAAF of the Smiths “Please, Please, Please Let Me Get What I Want” on every adverse ruling in an Art 120 case.  Maybe to decrease the amount of AF JAGs certifications trial judges should be forced to attend the SAPR stand-down day(s) this year?

  5. Anonymous Air Force Senior Defense Counsel says:

    Maybe if we fill up CAAF’s docket with certified issues they’ll have less opportunity to review/reverse other rulings?

  6. Brain PC says:

    Someone please help me…
    what is the authority of an Mj to order a depo of a civilian (in this case, when she will testify at trial).  This is not a court of general jurisdiction.  Military courts should be very cautious of ordering civilians around, unless there is very specific authority.  This almost seems like an issue of civil military relations.  
    I am sure this must have been in the briefs, anyone?

  7. Zachary D Spilman says:

    Brian PC

    The authority is Article 47, 10 U.S.C. § 847:


    (a) Any person not subject to this chapter who—

                    (1) has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board, or has been duly issued a subpoena duces tecum for an investigation pursuant to section 832(b) of this title (article 32(b));

    [Note: The following paragraph (1) is effective on December 27, 2014, and only for offenses committed on or after December 27, 2014]

                    (1) has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or board, or has been duly issued a subpoena duces tecum for a preliminary hearing pursuant to section 832 of this title (article 32);

                    (2) has been provided a means for reimbursement from the Government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage; and

                    (3) willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person may have been legally subpoenaed to produce;

    is guilty of an offense against the United States.

    (b) Any person who commits an offense named in subsection (a) shall be tried on indictment or information in a United States district court or in a court of original criminal jurisdiction in any of the Commonwealths or possessions of the United States, and jurisdiction is conferred upon those courts for that purpose. Upon conviction, such a person shall be fined or imprisoned, or both, at the court’s discretion.

    (c) The United States attorney or the officer prosecuting for the United States in any such court of original criminal jurisdiction shall, upon the certification of the facts to him by the military court, commission, court of inquiry, board, or convening authority, file an information against and prosecute any person violating this article.

    (d) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.

    I assembled an updated and formatted copy of the UCMJ in Word and posted it here

  8. Nathan A. White says:

    What are everyone’s thoughts on this being a certified issue, vice a writ-appeal?  Rule 4 states writs can be appealed, period, which means gov’t as petitioner can appeal if it loses at the CCA, right?  I ask because Rules 19(e) and 27(b) presume appellant is the petitioner, but it doesn’t make sense that the gov’t can petition a CCA under the All Writs Act and not appeal to CAAF under the same framework, especially given the gov’t could petition CAAF directly for extraordinary relief as well?
    Assuming the gov’t could file a writ-appeal (as I believe they could under Rule 4’s plain language) — If the Air Force Court reversed the trial judge’s deposition order, the accused as a real party in interest would be limited to filing a writ-appeal to CAAF.  The government could have filed a writ-appeal, but certified the issue instead, making this a mandatory versus discretionary review case, something the accused as real party in interest cannot do.  I would note this is the same way the In re Kastenburg case was brought to CAAF as well.  Should service JAGs have the authority to force CAAF to review extraordinary petitions for relief, when CAAF’s rules allow for writ-appeals? 
    10 USC 867(a)(2)’s plain language allows the service JAGs unfettered discretion in what to certify, but isn’t the intent of this rule to allow the gov’t to appeal final decisions and 62(a) appeals?  Given there’s the writ-appeal avenue for petitions for extraordinary relief through CAAF’s rules, should 10 USC 867(a)(2) be limited to exclude certification of writ-appeals?  I’m genuinely curious to know what both sides of the well think about this law school exam question.

  9. Zeke says:

    @ Nathan White –

    10 USC 867(a)(2)’s plain language allows the service JAGs unfettered discretion in what to certify

    I agree that the government thinks TJAG has unfettered discretion.  But, that can’t be true, can it?  Discretion without an intelligible principle to constrain it is unconstitutional.

    So long as Congress ‘lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform, such legislative action is not a forbidden delegation of legislative power.’ 

    Touby v. United States, 500 U.S. 160, 165 (1991).
    Isn’t the idea that TJAG has unbounded discretion even more offensive to constitutionality given:
    Appeals by the government are supposed to be “unusual, exceptional, not favored.”  Carrol v. United States, 354 U.S. 394, 400 (1957).  This disfavor arises from “a prudential concern that individuals should be free from the harassment and vexation of unbounded litigation by the sovereign.”  Arizona v. Manypenny, 451 U.S. 232, 246 (1981).  .  

  10. Zeke says:

    Here’s the standard the Solicitor General employs in determining whether he’ll allow the government to take an appeal from an adverse decision by a district court judge:

    [W]e look for cases involving conflicts among the circuits or cases involving constitutional or statutory issues of substantial and continuing importance to the enforcement of the law. In addition, we inquire to determine whether the factual record and procedural posture of the case are appropriate to test the legal question in a plenary hearing before the Supreme Court.

    The Honorable Wade H. McCree Jr., The Solicitor General and His Client, 59 Wash. U.L.Q. 337, 340-41 (1981), available online at
    Perhaps TJAGs do/should employ a similar standard.  The government should be appealing only things that involve the interpretation of the constitution or a statute, where the issue is (exceptionally?) important to the administration of the law in general, and where the facts of that particular case are “appropriate” to raise the legal issue.

  11. phil cave says:

    Is not the AFCCA the only CCA to twice I believe, “overrule” CAAF?
    My liege, where are you?

  12. Tami says:

    Convening authorities used to have absolute discretion in granting clemency too, look what happened.  I think Congress needs to do something similar with TJAG’s authority to certify issues to CAAF.  9 in less than a year seems excessive to me, and amounts to an abuse of discretion IMHO.  Hopefully CAAF will address this issue–there has to be some mechanism for CAAF to address what appears to be “nuisance litigation.”

  13. lonedissenter says:

    So, since you can’t imagine why the prosecution doesn’t want a deposition, it must be improper.  Or, you could have a small imagination?
    Just because you don’t know why, does not mean there isn’t a legitimate reason.
    When did CAAFLog turn into a DSO blog?

  14. Zachary D Spilman says:

    I don’t think it improper for the Prosecution to oppose this deposition lonedissenter, I just consider it unwise.

    Knowing nothing more about the case than what is in the CCA’s order, it’s inconceivable to me that the Defense couldn’t get what it needed during the three hours of interview and two hours of cross examination. But maybe the case is more factually complicated than it seems, or maybe the defense counsel is dense, or maybe the witness is a flake… who knows. These are issues for the judge to sort out after hearing argument from the parties (and even counsel for the witness), as he did. And that ruling is entitled to significant deference, as the CCA afforded it.

    And if harassment of the witness is a concern, that’s an issue for the deposition officer and supervisory counsel.

    I’m reminded of United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), where the Prosecution fixated on meaningless issues, particularly whether the definition of child pornography required that the image depict someone under the age of 18 or under the age of 16 (when the images at issue clearly depicted individuals under the age of 16, and some under the age of 10). Salyer, you may recall, ended with CAAF dismissing the child pornography convictions with prejudice. Had Government counsel focused on prosecuting the case, rather than picking fights over meaningless rulings on collateral issues, that wouldn’t have happened.

  15. anon says:

    Advise re-read majority and dissenting opinion in LRM v. Kastenberg.  Issue involved victim petition, TJAG certification. However, Judge Ryan clearly had both issues with standing and concerns that the certification obscured the carefully constructed limitations of Article 62.  

  16. AF JAG says:

    You mean to tell me that the Defense Bar is AGAINSTthe Government availing itself of interlocutory appeal to challenge erroneous rulings?!  The hell you say.
    Come, come everyone.  Let’s have no whining over the government exercising its ability to appeal (*although @Nate White, I’ll grant you that it sounds like this should have been a Writ Appeal, vice a TJAG cert if that process is already in place and available to both parties*).  You hear no whining from the government when an accused exercises his Article 67(a)(3) right to seek CAAF review (which they did about 300 times last year in the Air Force); so let’s hear no whining when the government does so an astounding . . . wait for it . . . approximately 10 times.
    Now, before I launch into the rest of my post, let me say that I’m going to turn this to a larger discussion of the criticism I see about the Government’s use of interlocutory appeals and TJAG certs, generally.  Let me also say that YES–I understand the difference between an Extraordianry Writ under the All Writs Act; a conventional interlocutory appeal under Article 62; and a TJAG Cert under Article 67.  What I’m going to do is to primarily discuss the government’s statutory right to Article 62s as a defense of the government’s appellat rights generally because that’s where the best caselaw discussions are.
    With that as a preface, may I, as tactfully as I can, point out that there is more than a little hypocrisyof decrying your opposing party’s availing itself of the appellate system as some sort of “injustice” or “nuisance litigation” when you do the exact same thing in service of your clients.  And to be clear, I don’t call this “injustice” from either side . . . I call it the adversarial system of justice.  The government is still allowed to be adversarial is it not?  Or does “justice” (in your minds) require that the government just sanguinely stand by while trial courts abuse their authority and issue erroneous rulings?  Is that the attitude you take with your cases on post-trial appellate review defense counsel?  I think not.  And while the trial counsel is absolutely charged to seek JUSTICE, not just convictions, SURELY my learned defense colleagues on this Blog will at least concede that SOMETIMES justice REQUIRES (or at least entitles) a government appeal to overturn an erroneous ruling.
    Certainly that’s the view of the United States Congress who enacted both 18 USC 3371 (DOJ interlocutory appeal statute) and Article 62, UCMJ all with the avowed intent to LIBERALIZE and BROADEN the government right to interlocutory appeal. Hearings on S. 2521 Before a Subcomm. of the Senate Armed Services Comm., 97th Cong., 2d Sess. 46 (1982) (“The proposal to allow government appeals responds to the problem of an imbalance between the appellate rights of the accused and those of the Government; and this is an instance in which military justice should conform to the federal procedure, which allows such appeals….”).  Incidentally, (and sorry, @Zeke) its now also the CURRENT VIEW of the United States Supreme Court: Congress manifested an intent to remove all statutory barriers to a criminal appeal taken by the Federal Government”   Arizona v. Maypenny, 451 U.S. 232, 243 n. 18 (1981) (emphasis added) ; and CAAF:  “Article 62 was intended by Congress to be interpreted and applied in the same manner as the Criminal Appeals Act, 18 USC § 3731” United States v. Brooks, 42 M.J. 484, 486 (1995) (emphasis added).  
    All of this is particularly apropos considering the mandate of our justice system, so eloquently expressed by the Supreme Court that “Our system of justice, like all others, has as its bedrock principle a single purpose ‘that guilt should not escape or innocence suffer.'”  Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added).  SURELY innocence “does not suffer” when the government seeks–in good faith–to challenge erroneous legal rulings short of verdicts of not guilty.  And by the way, @Zeke, the government doesn’t need to borrow from the Solicitor General’s rules when deciding upon the propriety of a government appeal, we already have them, its called RCM 908–you should really read it sometime.  And @Tami–for TJAG certs, its not like the government sends up a petition with a post it on it as a basis–these issues are vetted and carefully briefed. 
    Now, in this case, should the government have availed itself of the “Writ Appeal” process instead of the TJAG Cert?  I’d agree with that.  But you’ll have to excuse me if I see NO REASON why the government should apologize for seeking justice under the law via the appellate process.

  17. k fischer says:

    AF JAG,
    The force is indeed strong with you.  I just wish you would use your super powers for good.

  18. Zachary D Spilman says:

    A Government petition for extraordinary relief isn’t the same as an Article 62 appeal.

    A certification (where a “Judge Advocate General orders [a case] sent to the Court of Appeals for the Armed Forces for review.” Article 67(a)(2)) is not the same as a petition for a grant of review by an accused.

    Notably, it is the JAG who picks the members of the CCA. See Article 66(a). One would expect the JAG to have the highest confidence in their judicial talent.

    The pseudonymous AF JAG says that prior to certification, “these issues are vetted and carefully briefed,” but is this process adversarial? It’s certainly not public… And what’s the standard?

    An increase in overall certifications is not necessarily a bad thing. Maybe JAGs just think that CAAF should review more cases. But when certifications are limited to only (or practically only) cases where the Prosecution didn’t get what it wanted at the CCA, there is cause for concern. 


  19. anon says:

    AF JAG: Sorry didn’t realize Article 62 was intended to mirror 18 U.S.C. 3371.  Riddle me this, why did the 10th Cir. (along with other circuits) specifically express grave reservations about the government using the All Writs Act to get in the back (All Writs Act) what it could not otherwise get through the front (appeal under 18 U.S.C. 3371)? Check out United States v. Roberts, 88 F.3d 872 (10 Cir. 1996). 
    Congress delineated the scope of 18 U.S.C. 3371 and Article 62 to balance both the right of government appeal on interlocutory matters against the accused’s constitutional rights (to include the right to a speedy trial) and the more general rule favoring finality. You BOLD facing certain words, calling those hypocrites who consider minor issues resolved by the trial court to be not the proper grounds for the government to seek review of an interlocutory decision through the appellate courts, does not change that CAAF may ask some probing questions about where the line in the sand is. 

  20. AF JAG says:

    @Zachary Spilman– I think you’re missing my point.
    Please see my post above–I prefaced it by acknowledging the differences between an Extraordinary Writ; and Article 62 Appeal; and a TJAG cert under Article 67.  I’m fully familiar with the various avenues of appeal.
    As a point of clarification to your clarification, CAAF has already ruled upon the issue of whether a TJAG may “CERT” a writ appeal, and decided that he CAN.  United States v. Redding, 11 M.J. 100, 104-05 (C.M.A. 1981) (“Under this section [Article 67(a)(2)], Congress intended every court-martial proceeding considered by Court of Military Review to be subject to certification by Judge Advocate General for purposes of review by Court of Military Appeals ).
    More to the point, CAAF also previously upheld the constitutionality of TJAG certs, albeit in an Article 69 context.  United States v. Monett, 36 C.M.R. 335, 337 (C.M.A. 1966) (dismissing appellate defense counsel’s constitutional challenge against TJAG Article 69 certifications  “Congress provided the certification process as the means of achieving certainty in, and uniformity of, interpretation of the Uniform Code in each armed force, as well as for all the armed forces”).   And let me pre-empt you a bit here @Zachary Spilman–YES, I understand that Article 69 certs (TJAG to CCA) are different than Article 67 certs (TJAG to CAAF).  The point is, CAAF (or the CMA) was evaluating the constitutionality of the CONCEPT of TJAG certification. 
    Returning to our subject, the fact that TJAG is authorized to exercise his sound discretion in Article 67(a)(2) appeals does not make it unlawful.  The constitutional check on government appeals is to forbid any appeal that compromises Double Jeopardy (I.e. no appeal of not guilty verdicts or RCM 917 rulings).  The process of deciding which cases a party will submit for appellate review doesn’t have to be “adversarial” to satisfy constitutional equal protection (See Monett) or due process.  After all, its not as if the defense consults with the government prior to seeking to vindicate its appellate rights under Article 67(a)(3) to review before CAAF. 
    Now of course, CAAF’s review is mandatory for a TJAG cert and discretionary for a defense petition (absent a death penalty case), but that too does not make the process “unfair.”  If you just look at the numbers (CAAF annual Report 2013) Appellants submitted 806 petitions for review (CAAF Report at 17).  CAAF granted 105 (CAAF Report at 16).  By contrast, the TJAGs cert’ed 11 cases (CAAF Report at 16).  So where’s the unfairness in that?  CAAF has already given you your answer, there is none:   
              “The accused contends that the Uniform Code of Military Justice gives the prosecution the right to appeal to this Court in a case such as his, but denies it to him, and that the discrimination is invidious and invalid . . . circumstances plainly indicate that Congress provided the certification process as a means of achieving certainty in, and uniformity of, interpretation of the Uniform Code in each armed force, as well as for all the armed forces. Such a purpose justifies differentiating between The Judge Advocate General of an armed force and the individual accused and is directly relevant to the right to present minor cases for review by this Court.”
    Monett, 36 C.M.R. at 36-37.
    The bottom line is that both the Government and the Appellant have broad discretion to decide which issues they would like to petition CAAF on (subject of course, to the jurisdictional limits of the Court).  The Defense has a far more frequent, but discretionary, avenue of appeal via Article 67(a)(3).  Whereas the government has a far less frequent, but mandatory, avenue of appeal via Article 67(a)(2).  That’s not unfair–that’s Congress’s intent.  The defense has a full opportunity to make this process “adversarial” in appellate practice before CAAF on TJAG certs.  If your position is that the government “asking the question” (via TJAG cert to CAAF) is essentially “unfair,” then I just fundamentally disagree with that.

  21. stewie says:

    kf, I don’t know who Luke is and who Darth Vader is in this scenario, but can I be Chewbacca?

  22. Zeke says:

    @ AF JAG:

     @Zeke, the government doesn’t need to borrow from the Solicitor General’s rules when deciding upon the propriety of a government appeal, we already have them, its called RCM 908–you should really read it sometime.  

    Surely you jest.  RCM 908 has no sort of substantive standard to guide government actors in the execution of their discretion to appeal adverse decisions.  That’s the whole point of the Solicitor General’s standards – and the constitutional concept of “intelligible principle” –  not merely providing a procedure to be followed – as RCM 908 does, but to actually prescribe substantive standards and principles to be utilized by decision makers when exercising the discretion.  Rote procedure is a poor substitute for actually having a set of parameters to guide one when thinking about whether something should or should not be done.  The people have a right to a government that behaves rationally, not merely behaves in any way it legally can.

  23. stewie says:

    In order to behave rationally you think there must be a delineated set of principles?  I don’t agree with that at all.  At some point you get to the final decision, and sometimes, you actually want that final decision-maker to be free to decide whatever they want.  Particularly when it’s helpful to the accused for example in the soon to be expired way we do clemency.  the CA can decide whatever he/she wants to dismiss the charges.  I was ok with that.  Apparently Congress still is for non-qualifying cases.
    All this is, is a requirement that the CAAF hear the case.  the CAAF is still free to rule against the government, or even, should they want to, write their response in such a way as to embarrass a TJAG if the request is truly arbitrary, capricious, nonsensical or otherwise wasting the CAAF’s time.  Not everything needs written, delineated principles.

  24. Zeke says:

    @ AF JAG-

    the fact that TJAG is authorized to exercise his sound discretion in Article 67(a)(2) appeals does not make it unlawful. 

    And how do you suppose we are to determine whether TJAG exercised his discretion “soundly” when neither Art 67 nor RCM 908 prescribe any intelligible principle to which TJAG must conform?  Those provisions merely prescribe filing deadlines and notice procedures.  They are silent as to the criteria to be employed by TJAG in deciding whether one particular case should be appealed or not.  If there are no standards at all, and Congress has merely empowered TJAG to wield their authority according to his own design, then that violates the Constitution’s non delegation doctrine.  The truth is that Congress intends TJAGs to be bound to the same principles for discretion as the Solicitor General.  It is disturbing that the government rebels from that suggestion.

  25. Zeke says:

    @stewie –

    In order to behave rationally you think there must be a delineated set of principles?  I don’t agree with that at all. 

    I think the Constitution requires exactly that.  It requires Congress to prescribe an ” intelligible principle” to which actors using Congressional power are required to conform.  I understand that requiring rationality would likely have adverse impacts on accused persons (I.e. In clemency).  So, my position may seem strange given my current defense billet.  But, I believe the greater danger is a government unconstrained by a requirement of rationality.

  26. Tami says:

    AF Jag,
    I think you need to practice what you preach about reading RCM 908, also Article 62.  Should also take a look at Judge Ryan’s dissent in Kastenberg.  Congress’ intent regarding Article 62 seems pretty clear to me–Government is limited to an interlocutory appeal in 6 different situations, none of which applied to this case.  This is still the case 19 years after the most recent SCOTUS case you cite to for your proposition that the Government should be able to file an interlocutory appeal of anything and everything.
    Judge Ryan’s dissent was a warning to AF TJAG to not certify issues like this–it would have been smart to heed that warning.  I wouldn’t be surprised if Judge Ryan authored the opinion, nor would I be surprised at a 5-0 ruling that certifying this case amounts to an abuse of discretion, if not an outright “AF TJAG has no authority to certify this.”
    AF JAG, there is no legitimate comparison between the TJAG certifying a case to CAAF and an accused asking CAAF to grant discretionary review of his/her case.  Of the 300 times an AF accused petitioned to CAAF, how many of those petitions did CAAF actually grant?
    Even assuming TJAG has the authority to certify this issue to CAAF, what harm has the Government possibly suffered (or is likely to suffer) by the MJ requiring the primary witness to complete her testimony under oath?  Is anyone afraid she’s lying?  If that’s the concern, the Government has no business prosecuting the case.
    The Article 32 IO dorked this case up by letting the alleged victim leave before she was done testifying.  It’s all or nothing–no witness gets to decide “I’m OK with testifying on direct, but I am NOT going to testify on cross.”  The IO was obligated to ignore her testimony; if that happened, this might not have been an issue.  At least then, the MJ’s ruling would have been a closer call, though still not a “usurpation” of judicial authority.  Under the circumstances, the MJ remedied an error at the Article 32 hearing, and he had the authority to grant the remedy he did.  End of story, and the Government should have sucked it up and moved on.
    If CAAF smacks down the Government for wasting everyone’s time in certifying what is really a non-issue, how do you think that factors in to a speedy trial violation?

  27. stewie says:

    The Constitution I think requires a lack of arbitrary or capricious, I do not see any evidence it requires, in writing, listed principles for every decision-making process, particularly in an Article I environment.

  28. Zeke says:

    The due process clause requires a lack of arbitrary or capricious action.  That is a separate and distinct requirement from the requirements of the non-delegation doctrine.  Non-delegation is about preserving the separation of powers by not letting the Executive wield Art 1 Legislative powers unless it does so in accordance with intelligible principles that the Legislative has prescribed.  The no delegation doctrine applies explicitly to Art 1 powers, that’s the whole point.  Congress can empower others to act for it, but must dictate how and when and why those others will do so.

  29. stewie says:

    Sounds to me like an interpretation, not a black/white rule. I think you are adding specifics to a general principle.

  30. AF JAG says:

    BTW @Zeke and @Zachary Spilman,
    The last time the Supreme Court struck down a federal statute/regulation on “non-delegation” doctrine grounds was Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935), just sayin.’
    Also, much more recently, the Supreme Court has rejected non-delegation type challenges to Congressional delegation in the context of criminal trials.  See Loving v. United, 517 U.S. 748 (1996) (rejecting non-delegation doctrine challenge to President promulgating death penalty aggravation factors).
    Finally, “I strenuously object!” is not a basis for asserting that an exercise of a TJAG Cert is arbitrary and capricious.  When you find TJAG throwing darts at a board w/ case names on it, rather than carefully reviewing the certification packages delivered for his review (complete with the CCA opinion concerned and the briefs of the parties at the CCA) then come talk to me. 

  31. Brian LC says:

    ZS, I think I was unclear, and you misunderstood my poorly worded (and late night written) question.  My confusion stems from the limited basis that authorizes a MJ to order a deposition under RCM 702(a) (“exceptional circumstances” to “preserve” testimony).  From what is public about this case, I don’t understand how a MJ could order the testimony.  The civillian witness did not have to testify at all at the 32.  That she testified for 2 hours, when she was required to testify for zero hours, does not seem to be an extrodinary circumstance.  That she will be available for trial, seems to cement it.
    I suppose that it is possible that by allowing a full direct exam of the witness, and only a partial cross exam, could unballance a 32 and deprive the accused of a substantial right to cross a witness at the 32.  If this was the case, the MJ was right to order a remedy.  The answer, however, would be to fix the 32 (either direct a new one, or direct the IO to reconsider the findings without considering the entire testimony).  This solves the actual error (I got a bad 32).
    Our fellow citizens should be rightfully concerned anytime a miltiary court orders civillians around.  At trial, or to preserve testimony for trial, they will likely understand the neccessity (and why Congress granted that authority).  However, when a military court orders a civillian to be deposed to fix an error in the 32 – a 32 she had every right to refuse to appear at in the first instance – the basis of any trust is undermined. 
    So my question is, what is the “exceptional circumstance[] of the case [that made it] in the interest of justice that the the testimony of a prospective witness be taken and preserved for use…”?  What made this case special?  If there was something special that happened at the 32, that warrants such a remedy, it is not apparent. 
    Or, was the reasoning that it is within the discretion of the trial court to order the deposition of all witnesses who are unavailable at a 32?  That is, a trial court may vitiate the right to refuse to appear at a 32, by ordering depositions of all such witnesses.
    If its the latter, then I understand why the case was certified.

  32. phil cave says:

    These government appeals/writs are slowing down the process –  let them do it if they want to.  At least this is one of the instances were they can’t blame the defense for delay, or play other games with the processing metrics that makes them look good on processing times.  Most of the time I don’t care.  I think complaining witnesses care that they are not getting their day in court.
    If the gov. wants to appeal or writ something – fine.  If they want a certification – fine.
    My objection is that certification is not used properly and equally.  The certification power is almost never used in a defense case.  The decision to certify is biased almost always in favor of preventing a government loss or stopping a defense win.  Personally and professionally I expect more professionalism of the TJAG (and the staff) who stands at the acme of the military legal profession and who should deploy legal powers in a just and equitable manner.  That’s my objection – they don’t.  And I don’t believe that is for the want of defense trying.
    I don’t object to all AFJAG’s thinking.  What I object to is his belief that certification is purely a government tool in law as well as by operation.  A tool not always exercised transparently either.  If the defense gets a chop on the request – fine, that adds some transparency.
    And what Tami said, “Of the 300 (sic) times an AF accused petitioned to CAAF, how many of those petitions did CAAF actually grant?”  And, I would ask, if the TJAG was using his power wisely and fairly, how many of those in good conscience should he have certified to ensure the accused gets his day in court before an independent civilian panel.
    Well, some of those 300 had to be trailer cases did they not?  Wasn’t the Soybel mess last year?  I think 8 of those 300 got plenary review – so 8 grants out of 300, and I agree I haven’t figured trailers.
    In the numbers above AFJAG indicates a grant in 105 of 805 petitions overall.  Same question – how many were actually trailers.
    Seems to me a 100% “grant” is pretty good going however you dice the numbers.
    Final thoughts.
    If the AF is the same as the old Navy, AG submits the request for cert., the TJAG doesn’t have an aide trolling for possible certs.
    How many times did AFAG request a cert?
    How many times did AFTJAG grant a cert request?
    How many times did AFTJAG deny a cert request?
    How many times did AFAD request a cert? and same questions in regard to defense requests.

  33. Zachary D Spilman says:

    Brian LC-

    The AFCCA discussed your exact concern in page 7 of its order. In fact, I think it pretty obviously shared your concern. But it concluded that:

    A writ of mandamus is a drastic remedy to be used sparingly. The Government’s petition does not provide the type of wide-spread situation that warrants employment of this extraordinary relief.

    Order at 8. Case-specific for sure, but so (it seems) is everything else about this case. Except, of course, for the way the Government is furthering the appeal. 

    AF JAG-

    I have no problem with Government appeals per se. I’m just starting to get a funny feeling about the way the Air Force is handling certifications to CAAF.

    Though it’s perhaps worth noting of the Office of the Judge Advocate General of the Air Force that Lt Gen Harding (the JAG) retired in January, Maj Gen Lepper (the DJAG) retired in February, and Maj Gen Kenny (who is normally the mobilization assistant) has been performing the duties of the JAG since then. That’s not to imply anything negative about Maj Gen Kenny (he was actually very impressive during the Code Committee meeting), but that’s an awful lot of turnover in a very short amount of time.

  34. k fischer says:

    Your request is a few years too late.  I’ve already bestowed the role of Chewbacca on a trial counsel who shall remain forever nameless, except to the TDS counsel with whom I shared the designation and my Chewbacca-esque growl.  Han Solo is still open, though.  You’d make a really good Han.  And, C3PO is taken nicely by RK3. (b/t/w anyone heard from RK3 lately?) 
    Since I have no appellate experience whatsoever, (except for being 3-0 in the Court of Appeals for Veterans Claims) and I rarely, if ever, win pretrial motions, I have no opinion whatsoever in this matter.  However, AF JAG uses a lot of citations, EMPHASIZES the right words using ALLCAPS, and he types words that I don’t have to Google, so I would tend to be persuaded by him more than anyone on this thread.  Hence, seeing how he advocates for the Empire in a most convincing manner, he has duly earned the title of Vader.

  35. Tami says:

    Brian LC:
    Article 49 and RCM 702 govern depositions.  The MJ (and also interestingly a convening authority) has the authority to grant such a request.  In fact, a request for deposition can only be denied for good cause.  If you look at the discussion of RCM 702, you’ll see good cause to deny includes when a witness will be available for trial, ABSENT unusual circumstances, such as witness unavailability at an Article 32 hearing.
    It’s insufficient to argue that the deposition is inappropriate because the alleged victim could have chosen to be unavailable for the Article 32 hearing.  Several “unusual” factors make this case “special” enough to warrant granting a deposition request:
    1.  The alleged victim chose to testify at the Article 32, therefore she made herself “available,” and therefore was required to complete the cross-examination.  The accused has the statutory right under Article 32 for full opportunity to cross-examine available witnesses, which clearly he did not get because she quit during the cross-examination.  The preservation for use of testimony is not limited to a court-martial, it also includes use at an Article 32.
    2.  Her decision to quit during cross-examination was prompted by the IO telling her she could quit.  The IO was incorrect because she made herself “available.”  I don’t know if this was an issue the defense raised, but one could also argue the IO abandoned impartiality by suggesting to the primary witness that she could stop at any time.
    3.  The alleged victim did not respond to DC’s request for additional interviews after the Article 32 hearing.
    4.  The IO considered her incomplete testimony in making findings and recommendations.  This is an “all or nothing” situation, since she refused to complete cross-examination, the IO was obligated to disregard all of the testimony she did provide.
    In using the All Writs Act to challenge the MJ’s decision to grant the deposition, the Government was limited to arguing that the MJ had no authority to grant it, or that the MJ was wrong in ordering the deposition and will continue making this error in the future.  The Government clearly couldn’t meet the first requirement because the MJ clearly has statutory and regulatory authority to grant a deposition. 
    Was the MJ wrong in ordering it?  I don’t think so, but I understand others might disagree.  BUT that is an “abuse of discretion” standard that doesn’t apply to the All Writs Act, and that’s the standard the Government is arguing.  That is AFCAA’s point–the order, in a nutshell, says “we think the MJ could have been wrong in ordering the deposition, if any one of us was the MJ, we probably would’ve denied the request, but it doesn’t matter if we disagree with the MJ because we only look at whether the MJ had the authority to grant it, and since he had authority, we must deny the Government’s request.”
    Finally, in order to get the requested relief (don’t force our primary witness to complete her testimony under oath in an adversarial setting), the Government has to show harm.  So I’ll ask again, what harm is there in requiring the primary witness to complete her testimony under oath in an adversarial setting?  I see no harm, assuming she is telling the truth.  The Government gets to lodge objections, which the MJ can later sustain.  I also see a benefit, in that if she is not available for trial later on, the Government has testimony for use at trial.
    Honestly, I don’t see a good faith basis for the Government to continue this fight….

  36. AF JAG says:

    @K Fischer,
    Well what a nice thing to say–no kidding–I appreciate the SHOT OUT! (Note the gratuitous use of all CAPS just to say thanks)
    After all, where would the Rebels be without their “Vader” to struggle against . . . that’d make for a pretty boring movie(s).
    So I’ll wear the “Vader” moniker w/ pride . . . may even change my CAAFLog alias . . . but let’s not get ahead of ourselves:) 

  37. Paco says:

    By his bold and italicized font, AF JAG seems to enjoy using the word “hyposcrisy,” however, he did neglect to say how it is not hypocritical for the government to argue it is ok for the AFCCA to take judicial notice of an entire element, yet TJAG certify an issue to CAAF claiming a “miscarriage of justice” for AFCCA dismissing a governemnt argument by citing a learned treatise.  (See ). 
    TJAGs should remember that Humphries was originally a TJAG cert complaing about a sentence severity decision that went against the government.  Now, the Humphries ruling has resulted in complete overturns of at least child molestation charges (Carter), negligent homicide charges (Lindgren), and blue on blue indecent assault charge (Arriaga), but don’t worry I believe TJAG certified all of those decisions too to no avail).
    One of the issues is that AFCCA judges serve on the court after being appointed by TJAG, and then TJAG turns around and appeals a large percentage of the adverse governmental rullings against him.  Does it seem that TJAG is trying to make clear his disdain for such ruling?  It goes further where-in government counsel (the same government that assigned judges) mock trial level-judges (at one point accusing them of not being able to use Westlaw) because they do not like the ruling. 
    Given the high result of favorable governemental rulings (which is mostly a result from the burden an appellant must overcome) of course a number of cases are going to be appealed by an appellant.  Given many cases are also simply submitted on their merits the 300 number may not be all it seems to show.  But how many case determinative rulings in favor of an accused have been certified by TJAG?  From memory and probably not an exhuastive list but: Carter, Lindgren, Arriaga, Burns, McIntyre, Seton…all were/have been certified.  (True TJAG did not certify two newer sentence severity cases resulted in favor of defense Smith and Gage, however, this may be due to CAAF’s limited role in reviewing sentence severity cases).  I geuss we will see about AFCCA’s recent Katso opinion.

  38. Tami says:

    @phil cave,
    My reference to the “300 times” was in response to AF JAGs comment:   “You hear no whining from the government when an accused exercises his Article 67(a)(3) right to seek CAAF review (which they did about 300 times last year in the Air Force).”

  39. k fischer says:

    AF JAG,
    Just remember, Vader killed the Emperor and turned out to be a good guy in the end, so when the Ft. Benning TDS office gave me a Vader pez dispenser……and a Vader Christmas ornament……I, too, took it as a compliment.  However, I wouldn’t change the moniker, unless you changed it to VADER.  Your use of all caps in AF JAG displays an extraordinary amount of self-confidence.

  40. Christian Deichert says:

    Dibs on Boba Fett.

  41. Tami says:

    Dibs on Princess Leia!

  42. k fischer says:

    it’s not like you have much of a choice.  The only other women in the first 3 Star Wars were Jabba’s female slave with the funky hair and Luke Skywalker’s Aunt who gets fried by a stormtrooper.  Seriously, those first three movies were like the O Club at Miramar, aka Fighter Town USA aka Dangerzone…….perhaps a target rich environment for the Sailor in the Village People…..

  43. stewie says:

    Wrong kf, Mon Motha…”many Bothans died to bring us this information.”

  44. Charlie Gittins says:

    KF:  I proudly display a Darth Vader figure on my shelves in my home that was presented to me by a client after trial resulting in acquittal; and I was referred to on many occasions as the leader of the “dark side” while in the USMC.  I am proud of it.  And, I maintained the Dark Side to the end; I never compromised.  

  45. stewie says:

    Typo kf, Mon Mothma.  Probably fits Tami better than Aunt Beru (Luke’s fried Aunt) as she was a Senator and co-founder of the Rebel Alliance according to wiki.

  46. k fischer says:

    Your level of geekacity is far superior to mine. I forgot Mon Mothma, though I never actually knew her name.  Okay, so there are four females in the Episodes IV –  VI, or the first three movies.  I call dibs on the Jawa who tased R2D2 on Tatooine.  He is the unsung hero in the series.
    Charlie, it took me at least a year in TDS to realize that Commanders’ reference to The Dark Side was that they were saying TDS stood for The Dark Side.  I just thought they were all Star Wars fans.

  47. stewie says:

    Geek? No, just someone who never forgets those brave Bothans who died for the Death Star plans.  Rest in Peace fictional aliens.  (pours out blue milk for the homies).

  48. RKincaid3 says:

    It’s beginning to look like the Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.

    Yep…and that is also the view of Congress.  And unfortunately, it is also the view of many in the key military leadership roles who seem to bend over backwards to give Congress what it wants–like the AF leadership–so that they can be promoted.  
    Despite the oath of office and the JER, putting personal interest before self interest in the ongoing efforts of “Operation Destroy Rape Culture” are quickly exposing and separating the leaders from the politicians wearing uniforms.  Those who defend ODRC at all costs are not leaders–they are supplicating sycophants.
    Where are our leaders?

  49. RKincaid3 says:

    By the way, leaders stand up for EVERYONE–including the worst among us–like an accused and the guilty.  We all have rights–no matter what we have done–or how heinous we have behaved.  Without a system that protects us all–Satan himself even–that which we can do to the worst of us can easily be done to us when the tides change and we are no longer swimming with them.

  50. DCGoneGalt says:

    RK3:  As to your comments on leaders and leadership, I said on a different post a few days ago that the current response by leadership to this crisis is “undermining respect for leadership who continually brief and make decisions on information that everyone knows is taken out of context or untrue based on political pressure that everyone pretends doesn’t influence the process.”
    IMHO, the lack of a coordinated and rational response by leadership and a willingness to defend the military justice system against untrue and politically motivated attacks is undermining both morale within JA ranks, especially at the O-3 rank that litigates these cases, as well as respect for the entire military justice process throughout all career fields.  If those in leadership, both in and out of JA, think they are saving the military justice system by their chosen response then I fear they will merely end up choosing a slower but much more effective, painful, and sad way to destroy the system.

  51. stewie says:

    I don’t necessarily disagree with you DC but I think you underestimate the level of reaction Congress would have if the TJAGs had actively defended themselves in this environment.  The legislation that would have come out I think would have been MUCH worse.  Having said that, I think because the “solution” sought by many in Congress is both untenable/unachievable and “solves” a problem that doesn’t really exist (compared to the civilian world and human nature (i.e. you are never going to have zero sexual assaults)), the end result is going to be that each incremental solution is not going to be viewed as successful.
    Eventually, getting rid of the MJ system in totality is an eventual possibility.  Quite frankly, the only hope is that this dies away at some point to be replaced by other shiny things.

  52. DCGoneGalt says:

    Stewie:  Perhaps Congress would have reacted even more harshly but it was deeply saddening to see TJAGs and commanders become politicized on this issue to the detriment of the truth.  I disagree that the end of the military justice system is a possibility.  That would entail giving cases to the civilians and that will not meet the desired ends of more sexual assault allegations resulting in trials.  Instead, I think the worst endgame scenario involves a centralized Sexual Assault Justice system with a separate preferral/referral authority, as well as regional Art 120 IOs for Art 32s, regional SVPs and quarterly member panels in each region that are specially chosen to hear Art 120 cases.  Creating a wholly separate system for Art 120 cases with these special command and prosecution structures would likely achieve the desired result of many more cases going forward and increase the conviction rates.  It is a truly scary proposition but one that I think is more possible than the complete abolition of the military justice system, or even the partial abolition of taking Art 120 cases and handing them to civilians.

  53. RKincaid3 says:

    DCGG:  Hooah.  Amen.