With a published decision in United States v. Kokuev, 77 M.J. 531, No. 201700216 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.), a three-judge panel of the NMCCA denies an interlocutory prosecution appeal of a military judge’s rulings denying a request to sever the attorney-client relationship between the accused and his detailed military defense counsel, and denying a prosecution request to recall a witness.

The CCA finds that it lacks jurisdiction to review the request to sever the attorney-client relationship, and that the military judge did nor err in denying the prosecution request to recall a witness.

Private (E-1) Kokuev is charged with offenses including battery of his wife and drug offenses. This is Kokuev’s second court-martial (the CCA summarily affirmed the result of the other court-martial on November 8). The battery and drug offenses were withdrawn from the first court-martial and later referred to this court-martial.

The prosecution called Kokuev’s wife as a witness to testify about the alleged battery. The prosecution did not ask the wife any questions about the drug allegations during direct examination, but Kokuev’s defense counsel asked her about her own drug use on cross-examination. A member then submitted a question for the wife asking if she even observed Kokuev use drugs, but the question was not asked.

After calling additional witnesses, the prosecution sought to recall the wife to testify about seeing Kokuev use drugs. Kokuev’s civilian defense counsel objected “based on a lack of notice, and because [the wife] had declined the defense’s requests for interviews.” Slip op. at 3.

The military judge initially denied the prosecution request but later – after a proffer during a 39(a) session – ruled that she could be recalled. In response, the defense requested production of two rebuttal witnesses. Kokuev’s detailed military defense counsel, however, formerly represented one of those rebuttal witnesses at a different court-martial, creating a potential conflict of interest.

Civilian defense counsel then moved to sever the attorney-client relationship between Kokuev and his detailed military defense counsel (eliminating the conflict of interest). The military judge denied that request and instead decided that the prosecution could not recall the wife because her testimony had minimal probative value that was substantially outweighed by other concerns. In part:

the MJ [military judge] found that recalling [the wife] would result in an actual conflict of interest for defense counsel, and that this conflict would require [detailed defense counsel’s] removal from the case. This finding weighed heavily in the MJ’s MIL. R. EVID. 403 analysis.

Slip op. at 4. The prosecution appealed.

Writing for the panel, Senior Judge Hutchison first considers whether the CCA has jurisdiction.

Relying on [United States v. Vargas, 74 M.J. 1 (C.A.A.F. Dec. 8, 2014) (CAAFlog case page)], the appellee argues that the MJ’s ruling denying the government’s request to recall ZK was simply a “case management ruling[] intended to protect the rights of an accused and ensure the effective administration of justice,” and therefore, “not reviewable under Article 62, UCMJ.” . . .

. . .

The MJ’s ruling precluding ZK from testifying here is readily distinguishable from the MJ’s ruling in Vargas. . . . Here, the MJ applied the MIL. R. EVID. 403 balancing test and determined ZK’s proffered testimony was inadmissible. As a result, the MJ’s decision had the direct effect of excluding ZK’s testimony that she observed the appellee use and manufacture MDMA. We have jurisdiction to decide a government appeal of this ruling.

However, the MJ’s denial of the defense’s motion to excuse Capt RM was not an order or ruling that excluded evidence. . . .

. . . This ruling does not satisfy the jurisdictional requirements of Article 62(a)(1), UCMJ.

Slip op. at 5-7.

Senior Judge Hutchison concludes:

Having concluded that the MJ did not labor under an erroneous view of the law regarding the scope of “unfair prejudice,” and recognizing that the MJ “has a range of choices and will not be reversed so long as the decision remains within that range,” Gore, 60 M.J. at 187, we hold that the MJ’s ruling denying the government’s request to recall ZK was not beyond the range of reasonable decisions, and that he did not, therefore, abuse his discretion.

Even assuming the MJ, and by extension this court, erred in extending the Seventh Circuit’s 403 analysis of “unfair prejudice” to include the harm associated with severing an accused’s attorney-client relationship, we would still deny the government’s appeal. The MJ also concluded that the probative value of ZK’s testimony was substantially outweighed by the dangers of undue delay and wasting time. The MJ noted the issues caused by the delays to date—including the loss of two members—and concluded that permitting the government to recall ZK “would lead to an unquantifiable number of subsequent delays to the proceedings that could last for significant, unpredictable, and unknown periods of time.” Indeed, ZK had already testified at length and the government had prepared its case for over a year. Permitting the government to recall ZK based upon new-found information near the close of the government’s case would necessarily put the appellee in the undesirable position of either seeking a continuance in order to interview ZK and prepare cross-examination on her new testimony—thereby extending his lengthy pretrial confinement—or to forego such preparation to hasten the conclusion of his trial. Finally, the MJ appropriately concluded that recalling ZK would very likely require additional litigation surrounding Capt RM’s continued representation of the appellee, which would further delay the proceedings. Therefore, we also conclude that the MJ did not abuse his discretion in determining that the probative value of ZK’s testimony was substantially outweighed by the dangers of undue delay and wasting time.

Slip op. at 15-16.

29 Responses to “The NMCCA denies a prosecution appeal over recalling a witness (that would require severing the accused’s attorney-client relationship with his military defense counsel)”

  1. CDR X says:


  2. k fischer says:

    Sure wish I were the MJ reeling in the loose Tigers in that circus of a trial………NOT!!!!

  3. (Former) ArmyTC says:

    That was one weird fact-pattern…here is my first question…HOW HAD THE TRIAL COUNSEL NOT ASKED ZK IF SHE HAD SEEN THE ACCUSED USING/MAKING MDMA?!?!?!
    You are a no-go at this station. Report for retraining.

  4. Zachary D Spilman says:

    Thank you CDR X, and my apologies to Senior Judge Hutchison for the misspelling (now corrected)! 

  5. "Unfair Prejudice" ??? says:

    First of all, I concur that Trial Counsel definitely should have dug deeper on the witnesses’ knowledge on all of the accused’s misconduct prior to trial (although . . . read the facts–the witness asserts she kept that from the prosecutors because he asked her to and she was initailly covering for him).
    That said, the result in this case was driven my military judge errors, not trial counsel oversights.  For those who have not done so, please read this opinion, because the facts make clear, any “prejudice” appertaining to the Accused in this case was of his counsel’s, not the government’s making. 
    As for the MRE 403 analysis in this case, let’s start here:  there is zero danger of “confusion of the issues” when this witness is going to testify about what sounds like the charged misconduct.    That just leaves the “undue delay” as the basis to keep out obviously probative testimony about the charged misconduct.  The undue delay here is of the defense’s not the government’s making.
    In simple terms, how is a defense counsel conflict of interest the government’s responsibility?  It was the defense community involved in the detailing of the military defense counsel concerned that screwed up and failed to de-conflict clients and interests, not the government.  So if the accused agrees there’s a conflict and wants a new conflict free counsel, COOL–there’s a delay and he gets one.  Client wants to waive the conflict—COOL counsel stays on.  Its an “unwaiveable” conflict—then counsel should be excused, new counsel detailed–but that’s not the government’s fault.  Either way, that’s no grounds for “prejudice.”
    Under the law, of course military judges do receive additional deference from reviewing courts when they place their highly discretionary MRE 401/403 balancing analysis on the record that should require more than merely incanting the words from MRE 403.  Deciding what facts and circumstances legally qualify as “unfair prejudice” is a conclusion of law that should be reviewed, de novo.  In this case, that review should start with this question:  why should the defense counsel’s conflict of interest, which the government had no part in creating, be allowed to operate as an effective veto on the government’s ability to present its case in chief?
    Finally, even assuming arguendo that the Court wanted to endorse the dangerous practice of allowing the defense a “heckler’s veto” over the government’s case in chief by a conflict of interest of its own making, here, we are talking about second chair counsel.  The very fact that the accused hired civilian defense counsel as lead counsel in this case belies a real prejudice claim.  The decision notes that the second chair counsel delivered opening statement in the case, cross examined the witness at issue (ZK), and had been detailed the longest.  So what.  The accused has already told you how important this counsel is to him in this case in relative terms:  second best, at best.  There is no “counsel of choice” problem in this case, the accused has made his choice—he chose his civilian counsel as his first chair counsel—end of story.  The Baca case the NMCCA cites to for the proposition that loss of “choice of counsel” implicated constitutional right to counsel concerns involves first chair counsel—so their own precedent indicts their faulty reasoning.    
    This is an absurd ruling.  The NMCCA allows the accused to have his cake and eat it too by supporting a military judge’s refusal to sever an attorney client relationship when there is  (according to the State Bar) an “unwaiveable” conflict of interest, and then call that “undue delay” because of it?  It’s absurd.

  6. Cloudesley Shovell says:

    I’m only viewing from afar, but this mid-trial resort to Art. 62 seems to be more and more common.  What the hell, government?  It’s your trial, you control virtually everything.  Military members at courts-martial hold the government to a very high standard and expect the government to show up with clean hands and an airtight case.  You aren’t helping matters when you run and cry to the CCA every time something doesn’t go your way.
    Under these facts, I cannot possibly conceive how refusing to permit recall of this witness means the loss of substantial proof of a material fact.  If the wife’s testimony was so darn important, how did you forget to ask these questions on direct?  How did you plan to prove the underlying fact that is now suddenly so important if the accused had declined to cross-examine?  Huh?  Well? 
    As for “Unfair Prejudice” ??? above, whoever you are, remember the basics of litigation:  If the facts are on your side pound the facts; if the law is on your side, pound the law; if neither, pound the table.  Notably absent is your chosen path, whining on a blog in annoying bold font about that meany judge.  If that’s the height of your legal expertise, you deserve to lose.
    Kind regards,

  7. DCGoneGalt says:

    I thought whining on blogs was one of the primary purposes of allowing comments.

  8. Tami a/k/a Princess Leia says:

    “Unfair Prejudice” is probably one of the whiny trial counsels who didn’t do their job the first time around, and doesn’t understand how appeals work.  Appellate courts don’t exist to help the government rescue a lost case.

  9. J.M. says:

    Tami, the Air Force would strenuously disagree with you. 

  10. Tami a/k/a Princess Leia says:

    I’m sure the Air Force does disagree with me.  But the Air Force’s track record on Article 62 appeals speaks for itself.

  11. stewie says:

    I was initially unconvinced “Unfair Prejudice” (is it ironic unfair prejudice?)…but your use of all-bold has brought me around.

  12. Isaac Kennen says:

    Unfair Prejudice,An underlying assumption for your entire argument is that the military defense function is not a governmental function.  
    I’d say that is an unfair assumption. Unlike public defender offices, military defense counsel are not independent of the prosecutorial function.  The same Judge Advocate General that is ultimately responsible for hiring and firing and assigning military prosecutors is ultimately responsible for hiring and firing and assigning those defense counsel as well.  The military defense function lacks its own budget and its own ability to retain experts.  
    Ultimately, I’d say a defense community failure is, unequivocally, a government failure because the government has refused to allow an independent defense community to exist.

  13. Unfair Prejudice??? says:

    Pleased to see that the bold defenders on this blog preferred to engage on the font rather than the arguments.  The font, by the way, was not intentional–guess it happened from some sort of cut and paste formatting switch-a-roo when I pasted my comments from a Word document.
    Anyone (besides @Issac Kennen, who actually endeavored to engage on the underlying legal arguments, thank you, @Issac Kennen) want to actually engage on the law?  Or do you prefer ad homenim attacks? 
    I’d like an answer to how MRE 403 (ordinarily a default rule of inclusion) demands suppression of this testimony due to a “conflict of interest” not of the government’s making or design?  How does “choice of counsel” operate to veto the government’s findings case when the accused made his election on his preferred counsel by hiring a civilian defense counsel?

  14. stewie says:

    Huh Issac Kennen? If you want an independent defense attorney, all ya gotta do is fork over the money, just like any American citizen.
    If you can’t, you get an appointed attorney. And whatever “independence” you lose, you certainly make up for it in quality vice your average public defender in my experience. Military defense counsel aren’t underpaid, they certainly have at least as much access to resources as a civilian public defender, and they aren’t trying 100s of cases where most of them are rushed through to guilty pleas without so much as any kind of examination by a defense counsel.
    You are proposing a standard that doesn’t exist anywhere.

  15. Nathan Freeburg says:

    For once we disagree.  The indigent military defendant is “stuck” with an appointed attorney just like the indigent civilian.  Now civilian public defender services at the state level do vary greatly by geography in quality (Federal public defenders are well-resourced and the District of Columbia public defender service is generally considered the best in the country).  But generally speaking civilian public defenders have their own investigators (if often overworked), don’t have to worry about zealous advocacy affecting the rest of their career, get their own experts without having to reveal their case strategy to the government and they don’t have to use IT systems and email run by the prosecutors.

  16. (Former) ArmyTC says:

    I can’t say I agree with Isaac here. I’ve never met a single Army TDS attorney who ever felt in the least bit constrained by the fact that his check comes from the same place as the TC. I don’t know what kind of shops they run in the other services, but Army TDS independence is more than lip service. Any argument that mere appearance creates a conflict is belied by the same UCI standard,  “an objective, disinterested observer fully apprised of all facts and circumstances” would harbor no doubt whatsoever about the independent nature of the defense bar.

  17. Isaac Kennen says:

    I think we’ll have to agree to disagree on this one.  I don’t see how a bunch of executive branch officers, appointed and accountable for to the same Judge Advocate General for their commissions, for their assignments, and for professional responsibility purposes, could be seen as anything other than government counsel.  Especially given the fact that the Judge Advocates General have thoroughly proven themselves to be partisan when it comes to the exercising the power to certify cases for review to CAAF.In such a system, the argument that the defense function is independent is, in my view, a matter of rhetoric rather than objective fact.  What structural guarantees of independence has the government erected?  All I have ever seen is vehement insistence that something which, on its face, appears to lack independence has nonetheless maintained its independent by sheer force of will.  Call me a cynic, but I am unconvinced.

  18. stewie says:

    1. Most state public defender systems are more or less tied to the system. They often get their cases assigned through the judge, and they have a STRONG incentive to deal. They are tremendously overworked, and chronically underpaid. So not only are they not much more “free” than your average TDS person in theory, they are no more free in practice, and the quality they give is way, way more variable.
    2. I’ve spend time as a DC, SDC, and at HQ TDS. In fact, it’s a minor miracle I’ve attained my current rank given the amount of time spent on the “dark side.”  Suffice to say, if there were even the slightest hint of an actual, practical bias towards the government, I’d have seen it. There is not. That isn’t “rhetoric” that is, in fact, objective fact. So your cynicism is misplaced.
    3. Public defenders have their own investigators? That’s nice, when do they use them? Because I’ve personally seen a family member go through the process and watched others going through it and it’s a pure cattle call. Cases are run through from intro to counsel to resolution at warp speed.
    4. I get the theoretical IT question/concern, but in practicality, when has that actually happened? Could a bad actor usurp it, sure. But bad actors can break down a lot of barriers. I remain pretty unconcerned that if I were to magically become a DC again, that my work emails would be given to the government, and the system is in place to make it hard to be used against my client.
    There’s nothing inherently unfair about the military justice defense counsel setup in general. There are certainly areas where fairness could be improved tremendously (having our own investigators, removing the “stigma” of “too many” defense assignments (aka more than 1)…and there are certainly structural issues to CMs (panel selection/number, unanimous verdicts, etc)…but I, for one, having seen both, would much rather be a defendant at a court-martial and the representation I would be given there, then at your average state trial with a public defender.

  19. Nathan Freeburg says:

    I’ll admit that I obviously have a bias as a civilian defense counsel taking military, D.C. and federal cases; but:
    as to #4. see Gitmo.  see the NCIS search of Marine DC offices at Quantico.
    As for #2.  See the order given to LTC Morse and his counsel only a couple years ago.  As well, I once heard an SJA state: “TDS needs to remember that they come back to the JAG Corps” — with reference to a DC doing something he didn’t like.  Granted, that’s one anecdote.  But the concern is there.
    Completely agree on #1.

  20. Kevin Reinholz says:

    I just wanted to say stewie wins this thread for the above comment:

    stewie says:
    December 16, 2017 at 11:06 PM

    I was initially unconvinced “Unfair Prejudice” (is it ironic unfair prejudice?)…but your use of all-bold has brought me around.

    I do disagree with Unfair Prejudice??? that this was a conflict of the defense’s making. The trial counsel by seeking to recall the accused’s wife opened Pandora’s Box by necessitating the need for the defense to call rebuttal witnesses to attack her credibility. Regardless, it is the accused in a court-martial, and not the trial counsel, who has constitutional rights which must be protected. I find it hard to sympathize with the trial counsel (who didn’t get their way) over the accused facing loss of liberty, punitive discharge, etc.
    Ultimately I think you have to look back at the Court’s ruling–that there was no jurisdiction under Article 62(a)(1), UCMJ to review the MJ’s refusal to excuse defense counsel. Article 62 should be used very sparingly–and unfortunately is increasingly being used by unprepared trial counsel to complain about MJ rulings they are unhappy with. The Court is correct to be loathe to expand its Article 62 jurisdiction.
    Sometimes things go your way, sometimes they don’t. This was a good teaching point for trial counsel. I expect they’ll be more prepared during their next court-martial.

  21. stewie says:

    Problem with your responses Nathan:
    1. That order was universally panned, ignored, and got the SJA responsible sent out to early retirement. Not exactly evidence disputing my point.
    2. GITMO is a bit of a special circumstance. Doesn’t involve American citizens. Not that I condone some of the gov practices there, but it’s a different animal.

  22. Nathan Freeburg says:

    Well if you’re talking about where I would rather be a defendant –as a single male if I was accused of a sex assault (especially an alcohol related one), I would take my chances in a civilian trial over a military one.  100 times out of a 100.  Public defender or not.  And none of the forthcoming changes to the UCMJ are going to change that.  But of course I would take a TDS counsel over your average state public defender.  But that’s an awfully low bar.  The proper point of comparison is federal public defenders:  https://www.fd.org
    As for Gitmo being a special circumstance, I think the same issues are a concern in any national security related trial.  Sure, the IC could still try to install a backdoor into Telegram or something but there is some protection in not being on government systems.
    If the Morse order backfired, that was not put out to the field.  That’s a problem in and of itself.

  23. k fischer says:

    I agree with Nathan with regards to civilian cases. 
    Most civilian jurisdictions don’t have unlimited funds acquired from US taxpayers to try every rape case, no matter how absurd the allegations, so the DA and Mayor doesn’t lose his/her job, to provide attorneys to complaining witness, or to train the county’s population every year to believe myths that they take into the jurors box with them.
    As far as public defenders v. TDS attorneys, that is a tough call.  I’ve seen some really good ones, but I have seen some really bad ones.  Most of them are competent.  And, if you are wondering which I am talking about, those comments apply to both categories of defender.

  24. stewie says:

    Not wanting to be tried in a military court vice civilian court has nothing to do with defense counsel…it has to do with civilian jurisdictions, particularly state ones, being too light on sex assault cases versus military being, arguably, too heavy.
    I don’t think a federal public defender is the correct point of comparison. Most crimes are handled by the state, not the feds. Certainly most of the crimes that happen in military courts are the types of crimes usually states handle, not the feds.
    kf, I’ve seen very very few “bad” TDS attorneys. And even if public defenders are mostly “competent” on workload alone they don’t get the same opportunities to exhibit that competence in most jurisdictions.

  25. Vulture says:

    TDS direct commission recipient meets client.  Video here.
    TDS SDC steps in to help.  Video here.
    Office of the Chief TDS intervenes.  Video here.

  26. Cloudesley Shovell says:

    Gosh, that kind of blew up.
    “Unfair Prejudice” ???, I did address the legal issues.  Read my second paragraph again.  You’re way down the rabbit hole on your counsel issues.  The question I posed addresses what happened way up on the surface, long before the excursion down the rabbit hole.  What the heck is this case doing down this rabbit hole?  If the testimony the government hoped to elicit from the witness on recall is so important, why did the government not address it on direct?  Why?  If the government didn’t address it on direct, how can the testimony suddenly be so important that it is substantial proof of a fact material to the government’s case?  The government should have known about this issue and been fully prepared for it weeks before trial.  If the government was surprised by the turn of events at trial, the government wasn’t prepared.  Remember, the defense never has to cross-examine a witness.  This is why one always elicit all material facts on direct.  Certainly the government was prepared for this eventuality.  If not, why not? 
    These mid-trial Art. 62 appeals are a recent and unwelcome phenomenon that speak loudly as to the government’s increasing failure to prepare properly for trial.  These are the sorts of issues that ought to be hammered out before trial.  I’ll say it again, Art. 62 is not a device for saving the government from its failure to be ready for trial.  It’s a device to resolve evidence issues pretrial. 
    Kind regards,

  27. Unfair Prejudice??? says:

    Thank you for the response post.  I’m glad you asked about the facts, because they are important in this case.
    In answer to your question:  “why didn’t the TC ask the witness about drug manufacturing on direct” the answer is in the underlying NMCCA opinion that I encouraged everyone to read before commenting.  If you read the underlying NMCCA decision, you’ll discover that TC didn’t ask the witness about drug manufacturing on direct is because the witness (wife of the accused, couple now going through divorce) had not divulged any knowledge of that prior to trial due to loyalty to her soon to be ex-husband.  After cross examination by Civ DC (attacking her own credibility based upon her own alleged prior alcohol and drug use), she apparently came to the conclusion that her duty to protect him was at an end.  Here’s how NMCCA describes it:
    The TC explained that following ZK’s testimony he asked ZK’s Victim’s Legal Counsel whether ZK had ever seen the appellee use, manufacture, or distribute MDMA. His inquiry was prompted by a member’s question that the MJ declined to ask ZK, asking, “before the night in the barracks, had you ever seen your husband do drugs before?
    . . .
    In an Article 39(a), UCMJ, session the next day, ZK testified that the appellee used, manufactured, and distributed MDMA. She also testified that she had not previously disclosed this information to Naval Criminal Investigative Service investigators or to the prosecutors in either of her husband’s courts-martial because she had been on good terms with the appellee, he had asked her not to say anything, and she did not want to provide incriminating evidence against him. She had agreed to testify only about the battery charges, in which she was the victim, after being subpoenaed. But after Capt RM cross-examined her and attacked her credibility, ZK stated she felt “bad about lying anyway, so I’m not sure why I’d protect somebody who doesn’t have any care for me in the world.”
    United States v. Kokuev, slip op. at 2-3.

    Now then, does this explanation leave open the way for a potentially very effective cross examination on the basis of bias and prior inconsistent statements?  Sure.  But that does not rise to the level of substantially outweighing the probative value here for MRE 403 purposes. 
    Finally, in this light, I think your criticism that this Article 62 appeal was eventuated because the government failed to prep seems off the mark here.

    So with that as a factual background, see my comments from my first post (again, accidentally posted in all bold font due to cut and paste formatting shenanigans)—why should defense counsel’s conflict of interest (not created by the prosecution) function as a veto over the government’s ability to present its case for testimony as to the charged misconduct?
    Thanks again for engaging with me on this.

  28. Cloudesley Shovell says:

    UP???–Thanks for the response.  This is the kind of stuff that happens all the time at trial.  I’m still stuck at how Art. 62 is triggered here.  The accused is charged with the battery and drug offenses.  The government knew going in that the wife was only going to testify on the battery.  I can only assume the government was going to rely on other evidence and witnesses for the drug offenses.  In other words, the government went to trial not expecting the wife to testify at all about drugs, and certainly had a plan to prove its case with the wife’s testimony limited to the battery charge.
    Now the wife says, for the very first time at trial, after testifying on direct and getting chopped up on cross, that she knows more than she’s said up until now.  So what?  The government still has all its other evidence and testimony to present.  Sure, the wife’s new revelations would be nice to add into the mix, but certainly the government had all the ingredients for a conviction before the start of trial, correct?  Then how is the wife’s testimony suddenly substantial proof of a fact material to the proceedings?  Art. 62 is for evidentiary rulings that make it impossible for the government to prove its case (at least in my opinion).  That can’t be the case here, because the government planned to prove up the drug offenses without the wife’s testimony.  So why didn’t the government just go ahead and prove up the drug offenses as planned? 
    Even in the event the wife were to testify as you wish, she’d be open for even more abuse on cross for changing her story. 
    Kind regards,

  29. k fischer says:

    Unfortunately I took Unfair Prejudice’s advice and read the facts of this case, which I had previously gleaned from Zack’s post was quite the circus.  Now having read said facts from the NMCAA, I need a drink. And, it is before 1400 hrs. And, a weekday.  And, I only drink the hard stuff at deer, turkey, or squirrel camp, none of which are occurring in the near future.
    But, once again, I’m glad I’m not the MJ on this case.  Why this Marine is facing a second court-martial for wife beating and production and distro of MDMA after having been convicted of using cocaine, breaking restriction, and violating a lawful order is perplexing.  Then, you have the CDC moving to sever detailed counsel and the accused going against her.  Then, you have the Government moving to sever the accused’s attorney client relationship with Cpt RM who represented RN at her Court-martial and might be conflicted if they called her as a witness, but no, the MJ determined there was no actual conflict, but an actual conflict existed between Cpt RM and Ms. ZK, the allegedly abused spouse, who somehow 10 minutes before the Government was to rest it’s case decided she was going to blow the lid off her husband’s flirtatious dance with Molly.  Then, you have the Government filing an interlocutory appeal which resulted in a case dragging on where the MJ denied the Government from calling a witness under MRE 403 because it would be, inter alia, a “waste of time.” 
    This case is so fubar that I think we should just dismiss it like the investigation into the mysterious death of Spinal Tap’s drummer from a gardening accident because its best that Kokuev’s alleged crimes are left unsolved.