The Air Force CCA has issued a published en banc decision in the interlocutory case of United States v. Wright, 75 M.J. 501, No. 2014-10 (A.F. Ct. Crim. App. Jan. 13, 2015) (link to slip op.).

The opinion appears to be jointly authored by Senior Judge Hecker and Judge Weber.

We’ve covered the Wright case sporadically (I summarized our past coverage in this post). It is a sexual assault case that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims.

The CCA’s opinion provides additional facts that I haven’t seen in print anywhere else:

  • First, the Accused is an Airman First Class (E-3) who was accused of rape and other sexual offenses “related to his sexual encounter with a noncommissioned officer from his duty section following a shopping trip and an evening of watching movies and drinking.” Slip op. at 2. My understanding of Air Force rank structure is that a noncommissioned officer includes personnel in paygrade E-5 and above.
  • Second, the first “Article 32 investigating officer recommended the charges not be referred to trial, citing his view that the named victim lacked credibility, his belief that there were inconsistencies in her various accounts of the events, and his view that the case contained evidentiary deficiencies (including the fact that a friend of the appellee who was present during the encounter stated the sexual acts appeared consensual).” Slip op. at 2 Three separate staff judge advocates (SJAs) concurred with this recommendation, including General Franklin’s SJA who “concurred with the investigating officer’s evidentiary assessment and recommended none of the charges be referred.” Slip op. at 2. General Franklin then dismissed the charges (likely due to the lawyer’s veto in Article 34(a)(2)).
  • Third, the second Article 32 investigating officer also found that the evidence did not support the most serious charge (of rape), and the new SJA concurred. However, the new convening authority referred the rape specification “contrary to her staff judge advocate’s advice.” Slip op. 4. The Government then conceded that the military judge should grant a defense motion to dismiss that specification as improperly referred. Slip op. at 4 n.6.

The CCA’s analysis explains:

The ultimate issue before us is whether the military judge abused his discretion by abating the proceedings. The military judge found “evidence of central importance” was included within the approximately 3,500 documents being withheld by the Government on the basis of attorney-client and related privileges. He abated the proceedings when the Government declined to produce the documents pursuant to the court’s order. Under the unique circumstances of this case, we find the military judge’s ruling incomplete and ambiguous in that he abated the proceedings without taking sufficient actions to define what materials were appropriate for in camera review. Because the military judge’s findings are incomplete and ambiguous, we remand for clarification and action consistent with this opinion.

Slip op. at 12.

The CCA grants the Government’s interlocutory appeal under Article 62 with the following limited order:

The appeal of the United States under Article 62, UCMJ, is hereby GRANTED in that the military judge failed to take sufficient steps to define what materials were appropriate for in camera review before ordering abatement. The record of trial is returned to the military judge for clarification and action consistent with this opinion. We make no ruling as to the issue of whether the defense is entitled to receive any of the communications at issue pursuant to its unlawful command influence motion. After the military judge takes sufficient steps to define what materials are appropriate for in camera review and conducts this review, if he orders materials provided to the defense, the Government may either comply with the order or appeal any subsequent order for abatement or other remedy within this court’s jurisdiction to review.

Slip op. at 16.

6 Responses to “The AFCCA remands Wright for clarification”

  1. DCGoneGalt says:

    Mr. Spilman, your understanding of what constitutes an AF NCO is correct. 

    According to Col Bialke [GCMCA SJA], Lt Gen Harding [former AFTJAG] stated the following:  the failure to refer the case to trial would place the Air Force in a difficult position with Congress; absent a “smoking gun”, victims are to be believed and their cases referred to trial; and dismissing the charges without meeting with the named victim violated an Air Force regulation.”

    I am only about three pages into the opinion and already – Words. Fail. Me.
    So the outcome is:  Send it back down to the trial judge, let the trial judge determine what is discoverable (this is, of course, assuming that the Government will lower themselves to even let the judge view it which is no guarantee under the Wright/Bowser “nuthin to see here” standard) and then let the Government send this right back up on appeal. 

  2. Advocaat says:

    En banc?  For this?  WT…?

  3. Dew_Process says:

    @ DCGoneGalt – I think the remand is technically and legally the correct procedure.  See generally a good article on the subject available HERE.
    The gov’t originally was going to submit a privilege log, but for reasons unknown, didn’t and the MJ should have forced the government to submit one – which is all I think that the remand is seeking clarification on.  A “Privilege Log” forces the party asserting a privilege to do so on an individual basis – here, probably per email – so that the trial and appellate judges can ascertain if there’s a factual and legal basis for the privilege first of all, and second, if the privilege is “trumped” by a constitutional right of the accused, e.g., UCI, Brady, etc.

  4. DCGoneGalt says:

    Dew_Process:  I agree, but based on the actions of the Gubmint to this point my point is that I see this heading right back to AFCCA.  I hope the MJ builds the record on why the Gubmint offered a log and then one never seems to have been created.  Did the MJ turn down that half-measure, did the Defense shoot down the offer, did the Gubmint back out?  
    I did kind of chuckle when the opinion said the MJ needed to further establish findings of a showing of UCI.  Ummmmm, how about the MJ copying and pasting the entire two pages of AFCCAs “Procedural Background”  with the header “Place This In The Context of Living on Planet Earth for the Past Three Years”?

  5. Ry says:

    although my initial reaction was, “what a glorious punt”, it is the right answer.  While I am doubtful there is a real privilege here, there ought to be a list of what is being asserted as privileged.  It is not enough to blankedly refuse. It’s a lot easier to deal with facts and specific documents that to answer a specific legal question in the abstract.  I wish the language was more directed to the prosecution on this point.  They deserve some chastising, not even considering the appearance that is being created by Boweser and now this…starts to look like Govt doesn’t believe it has to provide discovery if it doesn’t feel like it in sex cases. Oh! And if they don’t likes the answer, we know there is a cert in the hallway waiting to be called.
    If that was all there was, then the CCA probably could have just ordered the Govt to provide a detailed list, submit to the CCA and JAJA but a certain date, and permit 10 additional days to supplement their briefs.  In a post-trial case, UCI is de novo. In an Art 62, the CCA has de novo review but they are bound by the MJs facts.  They know cert is likely and want to write a solid opinion but found themselves struggling to articulate it when stuck with the MJs unclear facts.  
    In in my experience, MJs have been terrible with UCI rulings. Some have asserted that we still have a lot of acquittals so there must be no UCI affecting juries. I asked for the Sexual assault legal reviews to understand why some CAs chose not to send some cases to trial. I thought it important to know if they simply did whatever the alleged victim wanted or if they truly killed some cases despite an alleged victim’s desire to proceed. TC refused to provide, MJ refused to compel and then asserts CA must not be affected because he didn’t send every case to trial.  Moreover, I had judges find no evidence of UCI but read lengthy instructions to juries admonishing them to ignore everything they learned in SAPR training. I asked a judge afterwards how that wasn’t circular reasoning, since judges never read irrelevant instructions, what would be the need to instruct on SAPR if it failed to provide even some evidence of concern? 
    Here, I think the MJ believes there is UCI but mindful of his rulings in other cases. While he can decide each case on its merits, it would be somewhat problematic to find a cause for UCi here that he previously discounted as the opposite. Similar for AFCCA. Sitting en banc, anything they find to be UCi in fact or appearance will carry weight for all the other cases pending appeal or still waiting for trial.  Understandably, they wanted a more concrete record so they can find the narrowest answer.

  6. k fischer says:

    In a Wright related article, did anyone catch the article about the SVC for the CW in US v. Wright?