“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). These sources broadly fall into three categories: Constitutional, statutory, and regulatory.

On Monday CAAF granted review of an Army prosecution appeal under Article 62 involving the regulatory, R.C.M. 707, speedy trial right:

No. 18-0133/AR. U.S. v. James B. Hendrix. CCA 20170439. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING THE CHARGE AND SPECIFICATIONS WITH PREJUDICE FOR A VIOLATION OF R.C.M. 707.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

The Army CCA’s opinion is probably posted on the CCA’s website, but the website is inaccessible from the public internet (discussed here). The opinion is, however, available on Lexis at: United States v. Hendrix, 2017 CCA LEXIS 769 (A Ct. Crim. App. Dec. 14, 2017) (Lexis erroneously identifies this as an Air Force CCA case).

The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

The military judge found that the re-preferral was a subterfuge and did not restart the 120-day clock under R.C.M. 707. The military judge then concluded:

It is a dangerous perception if it appears that an [a]ccused, who is considered innocent, can be perpetually held in a Flagged state and under the perpetual crucible of potential prosecution, simply because an [alleged victim] may change their mind about their participation in court-martial proceedings. This is particularly true when, as in the instant case, an SVC has been assigned and utilized. Further protections of an [alleged victim] cannot come at the expense of the fairness of our system and the rights of [appellee].

. . . .

[D]ismissing this case without prejudice does nothing to alleviate the speedy trial issue. Doing so would continue to allow the Government to dismiss and re-prefer as they saw fit.

2017 CCA LEXIS 769, at *12.

The prosecution appealed and a three-judge panel of the Army CCA reversed. Writing for the panel, Judge Hagler concluded:

Given the government’s valid purpose for dismissal and the absence of any improper motive or deception regarding that purpose, the military judge’s conclusion that the dismissal was a subterfuge was clearly erroneous and an abuse of discretion.

2017 CCA LEXIS 769, at *11-12. Additionally:

There is only the single dismissal by the convening authority and a subsequent referral to general-court-martial less than one month later. There is no basis in the record to conclude the convening authority and military judge would allow the government to withdraw, dismiss, re-prefer, and refer these charges against appellee ad infinitum, as the military judge suggests.

2017 CCA LEXIS 769, at *13.

18 Responses to “CAAF grants review of a prosecution appeal of a dismissal under R.C.M. 707”

  1. K fischer says:

    Please allow me to star the slow clap for that military judge who very eloquently expressed his concern for the Accused’s rights.
     
    Clap…….

  2. Brian Bouffard says:

    … clap…

  3. DCGoneGalt says:

    Is there anything in the record to indicate it was a subterfuge?  
     
    If not, I think your slow clapping may have only turned a light off and on.

  4. k fischer says:

    They could have dismissed prior to the 120 day clock running, but they did not.  They waited until after the 120 clock ran.  It’s too bad there is not a mechanism to compel trial when you are the Accused in that situation. 
     
    Since 2015, I’ve represented two Soldiers for sex crimes at Ft. Benning where the PHO recommended dismissal of the charges.  With one client, I was straightforward with the Government and showed my hand at the 32 with all the bad evidence I had on the vic showing she was falsely accusing my client.  It was referred, client was unanimously acquitted.  Second client, the Government, with a scintilla of due diligence, could have found that my client was being falsely accused guy, but because of the previous case with the same SVP, I held my cards tight and shared nothing.  It was referred, and at trial I proved he was falsely accused based on a Government exhibit, specifically, Accused’s ERB showing he was deployed on the day his daughter said he began molesting her and the baby momma did not know he was deployed.  Needless to say, I successfully argued that his daughter was coached to falsely accuse him so baby momma could get back primary physical custody she lost to my client three years prior.  He was acquitted.
     
    Most people would say, “Hey!  The system worked.”  But, there is ZERO recognition for what happens to the falsely accused.  They get flagged, they don’t get promoted, they get noticed of QMP because they did not get promoted after being flagged for 2 years, they don’t get to go to schools to enhance their careers, they get removed from their jobs, their NCOER or OER’s sometimes suffer because why should the commander waste a top block on a guy who is probably going to jail, they suffer stress, etc. Some of them might consider putting their SGLI into a trust for their child making a family trustee instead of the falsely accusing ex who would squander it and sticking a gun in the mouth because after their marriage failed, they can’t see their children, etc., and the only rock that they have to lean on, the Military, well, that goes away to, even after the PHO recommends that the charges be dismissed.
     
    The ONLY concern shown in cases where there is a strong possibility that a false accusation has occurred is on the complaining witness who uses the SJA’s office as their own Morgan & Morgan personal injury law firm.  This MJ has recognized that Congress has allowed the United States Army to become a strawman for the complaining witness, so she can exact criminal penalties against her target in sex assault cases based on her whims.  If her actions and indecision cause the Accused’s rights to be violated, then her claims should fail.  If this accused is the rapist she says he is, then she needs to put on her big girl panties and take the stand and put him in jail where he belongs, so he doesn’t victimize others.  She should only be given one chance, and when she signs that piece of paper declining participation, then the only option for dismissal available to the Government should be with prejudice.

  5. TC says:

    k fischer,
    They did dismiss prior to the original 120 day clock running.  They then arraigned within 120 days of the new preferral.  I don’t think there’s any way to argue the government did anything inappropriate here.  One can argue that it’s somehow unfair to dismiss and re-prefer charges based on the shifting whims of the victim, but I don’t see how anyone could find a subterfuge by the government.

  6. DCGoneGalt says:

    I went back and re-read it after you mentioned the post-120 day dismissal in the first case because that would change things.  But dismissing and then re-preferring when it was the VIC . . . not the gov’t . . . that was the reason for dismissal is likely the right answer.  I mean, say you prefer and then a state tries to take jurisdiction on day 110 so you dismiss them the state DA changes their mind.  Are you now in a 10 day race to arraign?  I don’t think so absent some sort of statutory provision that adds up the time for case post-preferral.

  7. stewie says:

    While I question whether going forward with an ambivalent alleged victim isn’t pretty shaky, I think I agree with ACCA. The government didn’t dismiss and then reprefer for shady reasons or to drag out the case. They did it because the alleged victim refused to testify and then later changed her mind. One time.

  8. stewie says:

    So kf, they didn’t wait until the clock ran. So, where’s the beef (subterfuge)? The usual result for 707 violations is dismissal without prejudice. Dismissal with prejudice is usually reserved for bad faith on the government. Where is it in this case?

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

    Here’s the interesting part of the opinion:
     

    Ultimately, on 21 March 2017, the SVC provided a “Victim Input” memorandum to government counsel in which he represented, “[a]t this time, it is [PV2 EW’s] stated preference and desire that this matter not be referred to a General Court-martial, and instead, she respectfully requests the chain of command convene an Administrative Separation Board . . . .” Further, the SVC stated:

    [PV2 EW] does not wish to participate as a witness at both a Motion Hearing and Trial. A court-martial would require [PV2 EW] to be subjected to an invasive cross-examination and risk the disclosure of her mental health records. In addition, since reporting these allegations, [PV2 EW] has begun the difficult process of rebuilding her life. She has gotten married and is in the process of being medically retired from the Army. She does not wish to revisit everything that happened to her. An Administrative Separation Board would not require the same level of participation as a court-martial, but would still hold the subject accountable. Moreover, it would yield a more timely resolution. [Private EW] fully understands and is satisfied with the Administrative Separation Board process and believes it is an appropriate way to adjudicate and resolve this matter.

     
    This is the $1 million question–why didn’t the command go forward with the ADSEP board and what prompted the alleged victim to change her mind on cooperating? 
     
    Would seem much easier to go through the ADSEP process.  True, there won’t be jail time, punitive discharge, or criminal conviction, but if you want an easy separation with OTH, faster resolution, lower rubber stamp, um I mean standard of proof, and just as much, if not more, protection of mental health records, then why not go for ADSEP?  So maybe there is something to the subterfuge finding after all?
     

  10. stewie says:

    Sorry don’t follow, just because they didn’t go for the ADSEP that’s evidence of subterfuge??

  11. DCGoneGalt says:

    That’s some subtle subterfuge.  IMO, you’re subtly fudging the facts to find subterfuge.

  12. K fischer says:

    Stewie,
     
    The bad faith of repreferring the same exact charge when the alleged vic changes her mind is that the United States is subjecting themselves to the whims of the complaining witness.  The SVP is no longer representing the United States, but rather appears to represent the complaining witness who can choose or not choose to allow the Government to seek a conviction, which if the accused is actually guilty, would be in the interest of the United States.  Is that bad faith?  Perhaps not. 
     
    Perhaps, defense counsel should have developed a record to better show bad faith and the likelihood that if she would have changed her mind yet again, the charges would be dismissed without prejudice again.  Maybe the motions record does show that but ACCA left those facts out, which wouldn’t surprise me after it’s opinion in United States v. Chinchilla where it’s recitation of the facts developed at trial were woefully incomplete.  I will be better answer your question once I read the Appellants brief.  And I might agree with you.
     
    I just really like what the MJ said, and I’ve seen two pretty ridiculous cases at Benning between 2014 and 2017 go to trial where the Government appeared to be representing the complaining witnesses or her baby momma to get them to their desired end state where evidence in the possession strongly indicated that they could not get a conviction on all or some of the charges offenses, so perhaps I’m a little more skeptical of the Government at Benning than someone who hasn’t had the same experience I’ve had.  I recognize that bias. But, I sure agree with what that Military Judge said at the end of his order whether it is proper to dismiss with prejudice or not.

  13. K fischer says:

    Tami,
     
    And, I also found it interesting that a PV2 would be able to convince the Government to dismiss and possibly go with an admin sep which mostly likely would have a GUHC when he was accused of a sex crime because Hendrix also was a PV2.  It appears that she has some mental health issues.  Sounds like a weak case.  Perhaps a better motion for DWP would be for a violation of due process if defense can show that the Convening authority and SJAs office subjected themselves to the whims of the CW because of the external political pressures exacted on the military justice system.  This piece of evidence might could support peeling back that onion a few layers, especially if the PHO recommended dismissal at the 32.
     
    And this case was tried at Ft. Gordon.  Anybody know what the sex crimes climate was over there in 2015/2016?

  14. stewie says:

    An alleged victim makes a decision then changes it in short order (within days). The gov (perhaps wrongly) felt they had enough to go forward, and were probably disappointed that she wouldn’t cooperate, and then, in short order, she changes her mind so they move forward.
     
    That’s not “Whim” territory yet and it’s not bad faith and it’s not subterfuge. It may be a bad idea, it may be unwise, it may be misguided, but those things aren’t the same.
     
    Sure, if she again changed her mind and then back, THEN you could say ok, now we keep flipping back and forth so much that going forward is objectively untenable. But one time with a few days in between? Come on.

  15. Philip D. Cave says:

    Kf, yes as to FG. There are many issues there, but better for a chat off-line.  With that in mind, I’m not certain the events here were done as a subterfuge.
     
    On a larger issue, is the statute of limitations the protection here.  When and how often may a CW change mind during the running of the SOL?  As a society are we willing to accept that a CW may waffle (more than once) on what he or she wants to do so long as the waffling is within the SOL and there are no other due process problems as a result of the waffling (perhaps lost witnesses, although Valenzuela-Bernal seems to make that not always a persuasive issue–grammar police remain calm)?  Or are we as a society willing to give the CW only one chance and that’s it?  That provides certainty for the accused and the system.  How would we respond if the charges here were dismissed and a year later the CW changed mind and said, “you know what I need a court-martial to get closure” and charges were rereferred?  Does the clock keep running?  Or do we say look you waited a year to change your mind and that’s OK the clock stopped running, you’re lucky because if you’d change your mind within a few days of the first dismissal the charges would have to have been dismissed for denial of a speedy trial? In other words, a CW must wait at least, let’s say, 30 days before changing mind to avoid a 707 problem?  If we say yes that’s the answer, then let the games begin.  All the CW here does is change mind on day 3 but wait to day 31 to declare it.
     
    My sense is that CAAF will say that dismissal, either with or without prejudice, was not appropriate here.

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

    Again, what prompted the CW to change her mind about cooperating?  I totally understand the Government’s position on dismissing the case due to not having a cooperative CW who has made it crystal clear she doesn’t want a court-martial.  And it was dismissed after 120 days.  Whether it could’ve been dismissed earlier I don’t know, obviously the MJ is privy to facts that we are not.  That is part of the “subterfuge” analysis.
     
    And in reality, getting rid of someone via ADSEP is easier and faster, why would anyone in her right mind (k fischer feel free to chime in with bipolar analysis) change her mind and insist on going to trial, with its much higher burden of proof, longer process, full disclosure of evidence, real judges, case law, etc., that if the case ends in an acquittal, there will be no ADSEP either.  All these things she wanted to avoid, now 3 days later she willing to go through.  WHY?  The MJ probably knows, we don’t.
     
    I think CAAF might reinstate dismissal with prejudice, because ultimately the finding of subterfuge boils down to a difference of opinion, which is not “clearly erroneous.”  Doesn’t matter if ACCA judges would’ve decided this differently.  And as long as dismissal with prejudice is within the range of options for dealing with a 707 violation, which it clearly is, the appellate courts are obligated to uphold it.

  17. K fischer says:

    Stevie, Since Phil agrees with you, then I will have to concede defeat.  Otherwise I might just be agreeing with an unknown bot made up of algorithms created by POD or RAINN.  Maybe she will change her mind yet again, so the MJ doesn’t have to rewrite his opinion much.
     
    So hopefully the DC will look for evidence of UCI based on the immense pressure Gillibrands office places on Convening Authorities as noted in Barry.

  18. stewie says:

    Tami you ask why with what appears to be a sense that there is no possible “nonsubterfuge/crazy” reason to change her mind.
    I can come up with a few off the top of my head:
    1. She simply changed her mind after further reflection. Crazy, but it happens to humans sometimes.
    2. She changed her mind after talking to someone whose opinion she trusted (parents, sig other, family member, friend, mentor).
    3. Someone talked her out of it initially, and she agreed against her better judgment, and then passage of time made her move back to her original position.
    That’s three non-crazy reasons right there. Could she be flaky/crazy/etc? Sure, of course she can. But that certainly isn’t the default conceit.