CAAF will hear oral argument in the interlocutory Army case of United States v. Hendrix, No. 18-0133/AR (CAAFlog case page), on Tuesday, May 1, 2018, at 9:30 a.m. The court granted review to determine:

Whether the military judge abused his discretion by dismissing the charge and specifications with prejudice for a violation of R.C.M. 707.

“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. This case involves the regulatory, R.C.M. 707, speedy trial right.

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 one day after that. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

That arraignment exceeded the 120-day deadline in R.C.M. 707. Hendrix moved to dismiss, and the military judge granted the motion and dismissed the specification with prejudice after concluding that the convening authority’s dismissal of the original charges was a subterfuge. But the prosecution appealed and the Army CCA reversed, concluding that the dismissal was not a subterfuge because it was based on the alleged victim’s unwillingness-turned-willingness to participate. CAAF then agreed to consider the case.

Even though he lost at the CCA, Hendrix will argue from something of a position of strength because CAAF “review[s] the military judge’s rulings directly in an Article 62, UCMJ, appeal. United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2015) (CAAFlog case page) (citing United States v. Buford, 74 M.J. 98, 100 (C.A.A.F. 2015) (CAAFlog case page)). Hendrix also has the advantage of a deferential standard of review:

Under R.C.M. 707, the military judge is directed to apply certain factors in determining a remedy for a speedy trial violation, and then decide whether those factors lead to the conclusion that the case should be dismissed with or without prejudice. Under an abuse of discretion standard, mere disagreement with the conclusion of the military judge who applied the R.C.M. 707 factors is not enough to overturn his judgment. The standard requires that the military judge be clearly wrong in his determination of the facts or that his decision be influenced by an erroneous view of the law.

United States v. Dooley, 61 M.J. 258, 262 (C.A.A.F. 2005).

The circumstances of this case raise two separate questions of fact (or perhaps mixed questions of law and fact) under R.C.M. 707: first, whether the 120-day speedy clock was actually violated; and second, whether dismissal with prejudice is the appropriate remedy. The military judge found that the 120-day clock was violated in two ways. First, he found that:

the convening authority dismissed the charge and specifications on day 123 of the R.C.M. 707 120-day clock. As part of his analysis, the military judge determined the PHO improperly excluded the twelve days of “administrative pre-trial delay” because the PHO “did not specify any good cause.” (App. Ex. VIII, p. 1).

App. Br. at 25. Then he found that:

the convening authority’s dismissal and re-preferral of the charge and specifications did not reset the R.C.M. 707 120-day clock. (App. Ex. VIII, p. 6).

App. Br. at 26.

The Army CCA’s decision treated both of these findings by the military judge as conclusions of law, which are reviewed de novo (without deference, because a judge has no discretion to misapply the law). But CAAF’s decision in Dooley – where the military judge found a 707 violation and dismissed with prejudice but the CCA reversed – suggests that the military judge in Hendrix deserves more deference than the Army CCA gave him.

Specifically, in Dooley, CAAF grappled with “the difficulty an intermediate appellate court faces when balancing the deference due a military judge under the abuse of discretion standard with the potential drastic remedy of dismissal with prejudice.” Dooley, 61 M.J. at 258-59. Writing for a unanimous court (composed of judges whose terms have all since expired), then-Chief Judge Gierke explained that:

“Dismissal is a drastic remedy and courts must look to see whether alternative remedies are available.” But dismissal is “appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings.” Deference to the military judge’s decision is particularly prudent in those cases when a violation of R.C.M. 707(d) has occurred because, as the legislative history of the Speedy Trial Act demonstrates, Congress clearly intended trial judges to have “guided discretion” whether to dismiss with or without prejudice. Furthermore, “neither remedy was given priority.” Rather, a military judge’s decision is guided by the factors articulated in R.C.M. 707 and can be reversed only for a clear abuse of discretion. More specifically, the military judge’s decision in this case should be affirmed unless his factual findings are clearly erroneous or his decision in applying the R.C.M. 707 factors was influenced by an incorrect view of the law.

Dooley, 61 M.J. at 262-63 (C.A.A.F. 2005) (marks in original) (citations in footnotes omitted). A footnote also referenced the Supreme Court’s decision in United States v. Taylor, 487 U.S. 326 (1988) – addressing the federal Speedy Trial Act – with the following cititation:

See Taylor, 487 U.S. at 337 (“Factual findings . . . are . . . entitled to substantial deference and will be reversed only for clear error . . . . When the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court’s judgment of how opposing considerations balance should not lightly be disturbed.”).

Dooley, 61 M.J. at 263 n.47 (emphasis added). That’s a crucial part of the standard of review because, as Chief Judge Gierke concluded in Dooley:

The CCA stated that it “disagreeed with the assessment by the military judge” and that it “concured” with the trial counsel’s argument that any prejudice suffered by Appellant is incidental to recall for trial. Whether the CCA disagrees with the military judge or concurs with the trial counsel is not the standard of review. The military judge clearly articulated his reasoning for believing Appellant was being unfairly prejudiced. Therefore, the CCA could not reverse the military judge’s prejudice finding absent a determination that it was clearly erroneous.

Dooley, 61 M.J. at 265 (emphasis added).

So too in Hendrix, I think, and so I expect the standard of review will be a major theme during next week’s oral argument.

Hendrix’s brief (really the supplement to the petition for review, because CAAF ordered no additional briefs be filed after it granted review), however, doesn’t make the standard of review a central theme, though it does cite Dooley extensively (while the Army Government Appellate Division’s brief doesn’t mention Dooley at all). Instead, the central theme of Hendrix’s brief is a perceived conflict in the law involving whether the dismissal of charges is valid for the purpose of stopping the 120-day speedy trial clock:

Currently, there are three separate standards of subterfuge being applied between the trial and appellate service courts. First, the Army Court relies on the Robison “sole purpose” subterfuge standard: “Appellate courts look to whether the dismissal itself was a subterfuge–whether the ‘sole purpose of the dismissal’ was to reset the 120-day clock.” (Appendix A, p. 6) (citing Robison, 2011 CCA LEXIS 381 at *4) (internal quotations in original). Second, the Navy Court currently relies on Tippit: a dismissal is a subterfuge when it is “designed to defeat the 120-day speedy trial clock.” 65 M.J. at 80. Third, the military judge relied on Leahr: “Absent a situation where a convening authority’s express dismissal is either a subterfuge to vitiate an accused’s speedy trial rights, or for some other improper reason, a clear intent to dismiss will be given effect.” 73 M.J. at 369. Essentially, Leahr extends the Tippit standard to include “other improper reason[s].

Of the three separate standards of subterfuge being applied between the trial and appellate service courts, the military judge applied the correct one. . . .

App. Br. at 22-23 (marks in original). The question of subterfuge arises when determining whether charges were dismissed for a valid reason or merely to reset the speedy trial clock and get more time. Hendrix’s brief sees conflict in decisions addressing subterfuge as a sole purpose inquiry or as an improper reason inquiry. Put differently, Hendrix suggests that a dismissal does not reset the clock if it is for a hypothetical improper reason other than merely resetting the clock. It’s perhaps an interesting question, but I think it’s both immaterial to the resolution of this case and not actually a conflict in the caselaw.

Neither Tippit nor Leahr are true R.C.M. 707 cases. Rather, the issue in both Tippit and Leahr was whether the charges were dismissed – and not whether the dismissal stopped the 120-day clock – because in both cases the appellants claimed that the charges were merely withdrawn (meaning un-referred from the court-martial) rather than dismissed. In Tippit, the convening authority concurred with his staff judge advocate’s recommendation that he withdraw the charges under circumstances that CAAF found clearly meant dismiss the charges (chief among them being that “the charges had not been referred,” 65 M.J. at 78, and so there was nothing to withdraw), and in Leahr the appellant claimed that the dismissal was actually a withdrawal (and even conceded “that if the September 1, 2011, action was a dismissal, [then] he was brought to trial within the time parameters of R.C.M. 707.” Leahr, 73 M.J. at 369). Accordingly, the idea that Tippit and Leahr established two out of “three separate standards of subterfuge,” App. Br. at 22, seems to miss to point of both Tippit and Leahr.

But more fundamentally, the military judge’s ruling found two separate bases for a violation of the 120-day clock:

First, the military judge engaged in an extended discussion of whether certain delay was properly excluded by the preliminary hearing officer. (App. Ex. VIII, p. 5). This discussion was apparently for the purpose of determining whether the convening authority’s dismissal of the Sanders [first] Charge occurred before the expiration of 120 days from the time of the preferral. Because the military judge found that the convening authority’s dismissal of the Sanders Charge came after the expiration of 120 days, he ruled that R.C.M. 707 was violated and the Dossie [second] Charge would be dismissed. (App. Ex. VIII, p. 5).

Second, as an alternative basis for dismissal, the military judge ruled that the convening authority’s dismissal of the Sanders Charge was a “subterfuge” to vitiate Appellant’s speedy trial rights.

Gov’t Div. Br. at 5. Neither of these rulings involve the other improper reason language from Leahr; one reason was simple math, and the other was garden-variety subterfuge.

Nevertheless, assuming that dismissal for an improper reason other than avoiding the 120-day clock means that the dismissal does not stop the clock, Hendrix’s brief then suggests such a reason: the prosecution’s desire to respect the wishes of the alleged victim. Hendrix’s reply brief explains:

Leahr states that a dismissal resets the 120-day clock unless the dismissal is “a subterfuge to vitiate an accused’s speedy trial rights, or for some other improper reason.” 73 M.J. at 369. A proper reason is “a legitimate command reason which does not unfairly prejudice an accused.” Id. (internal quotations omitted) (emphasis added). The government had no “legitimate command reason” to dismiss the charge and specifications in this case. The government re-preferred the identical charge and specifications a mere seven days later, when no new evidence was discovered, and no new charges were preferred. The government’s purported compliance with DoDI 6495.02 is not a “legitimate command reason” because the government ignored the alleged victim’s desires for over six months, and only asserted compliance when it became advantageous to the prosecution of Private Hendrix.

Reply Br. at 8-9. Department of Defense Instruction (DoDI) 6495.02 (link) is the Sexual Assault Prevention and Response (SAPR) Program Procedures, and it includes the suggestion that:

The victim’s decision to decline to participate in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases, including, but not limited to, commanders, DoD law enforcement officials, and personnel in the victim’s chain of command.

DoDI 6495.02, Encl. 4, para. 1(c)(1) (emphasis added). Even if CAAF exaggerates these SAPR Program Procedures into military justice policy, there’s nothing binding about that policy where the drafter “used the word ‘should,’ rather than ‘shall,’ even though the latter verb is used repeatedly in other portions of [the DoDI].” United States v. Politano, 34 C.M.R. 298, 301 (C.M.A. 1964).

CAAF, however, need not wade into the meaning and effect of SAPR procedures. Instead, assuming it does not agree with the military judge’s mathematical calculation of a 707 violation, it could simply agree with this characterization from Hendrix’s initial brief (the supplement to the petition):

If the government had actually complied with PV2 EW’s wishes, it would not have preferred the charge and specifications after she first declined to participate. If the government had actually complied with PV2 EW’s wishes, it would have dismissed the charge and specifications in February 2017 after the SVC again confirmed PV2 EW did not want to participate. (See App. Ex. II, encl. 10). If the government had actually complied with PV2 EW’s wishes, it would have dismissed the charge and specifications in March 2017 after meeting with PV2 EW and hearing yet again that she did not want to participate. (See App. Ex. II, encl. 14).

While the government argues it attempted to comply with DoDI 6495.02, the record shows the exact opposite: the government had no interest in respecting PV2 EW’s wishes not to participate.

App. Br. at 31. In other words, the dismissal had nothing to do with respecting the desires of the alleged victim. Rather that rationale is a subterfuge for the true goal of resetting the 120-day clock.

The Government Division’s brief emphasizes the alleged victim’s unwillingness to participate in the trial as the sole basis for dismissal, explaining that “the ‘driving force’ of the convening authority’s dismissal was ‘the changing willingness of [PV2 EW].'” Gov’t Div. Br. at 14. From the Government Division’s perspective:

In this case, the combined effect of the policy articulated in DODI 6495.02 and the crucial nature of PV2 EW’ s testimony rendered the Government’s case inviable: the Government could not reasonably refer a case in which it did not expect to have sufficient evidence to proceed.

Gov’t Div. Br. at 14. But there’s a pretty significant flaw in this reasoning: just because PV2 EW did not want to participate does not mean she had the right to refuse to participate (particularly since she’s an active duty Soldier and this is a military justice proceeding). Hendrix’s reply brief makes the persuasive argument that:

At no time was the alleged victim unavailable to participate; she was simply unwilling. The government, both at trial and on appeal, has failed to explain why the alleged victim was unavailable to testify. The government could have issued a subpoena to the alleged victim, thereby requiring her attendance at a court-martial. The subpoena process is the same for any witness, regardless of whether the witness testifies for the government or the defense. Irrespective of what a witness’s desires are, the government has the authority to ensure the witness is present to testify.

Reply Br. at 10-11. That fact – coupled with what I see as a highly deferential standard of review for this issue – seems to me to be the likely focus for next week’s oral argument.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief (supplement to the petition for review)
Appellee’s (Army Gov’t App. Div.) brief (answer to the supplement)
Appellant’s reply brief (reply to the answer to the supplement)
Blog post: Argument preview

24 Responses to “Argument Preview: Whether an alleged victim’s unwillingness to participate in a court-martial prosecution is a valid basis to exceed the 120-day speedy trial clock, in United States v. Hendrix”

  1. k fischer says:

    This e-mail sent by the TC to the SVC is most telling: 

    Last we discussed, you indicated that your client did not want to participate in a court-martial, but would be supportive of a Chapter 10 [Army Regulation 635-200, Active Duty Enlisted Administrative Separations, (Dec. 19, 2016)] Separation Offer if one was submitted by defense. To date, there has been no offer submitted by Defense. There are no discussions surrounding a Chapter 10 Separation.

    Sounds to me like Hendrix’s prosecution was dependent upon the “whims of the victim.”  Had only Hendrix took the easy way out and submitted a Chapter 10, he could have gotten kicked out of the Army with an OTH and kissed any hope of going to college goodbye. Does anybody know if the facts of this case are weak for the Government?  Because I cannot fathom why the Ft. Gordon SJA office would allow a dangerous rapist to remain on Ft. Gordon for over a year and rely solely on the desires of his victim to testify, instead of subpoenaing the vic, seeking justice, and protecting the other privates on Ft. Gordon.  Unless, of course, it was a really weak case that they did not think they could win, so they tried to leverage a Chapter 10 against the possibility of an Article 120 conviction, SOR, and a DD.  Nor can I imagine the TDS office failing to convince a Private that it is in his best interest to submit a Chapter 10 request if they thought for a second he would be convicted.  Sounds like it is probably a weak case.
    Maybe the CoJ at Ft. Gordon should take a note from Morgan & Morgan and answer the phone, “Ft. Gordon Military Justice Division: For the Victim.”  

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

    1.  She didn’t want this case prosecuted to begin with.  Government didn’t respect her wishes.
    2.  She didn’t want to go forward.  Here’s the rationale:  

    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.

    3.  Charges withdrawn and dismissed after 120 days to go to ADSEP board, easy peasy, fast, OTH practically guaranteed IAW complainant’s wishes.
    WHY THE CHANGE OF HEART?  The whims of the complainant?  All the reasons for avoiding a court-martial still exist for her.  If the government had respected the complainant’s wishes from the outset, you wouldn’t have this problem, there wouldn’t have been preferral #1.  Seems very disingenuous.  A finding of subterfuge supported by the record and a highly deferential standard of review, plus a correct view of the law, I think leads to reversal of ACCA.

  3. k fischer says:

    Your highness,
    Sounds like PV2 has a personality disorder and falsely accused Hendrix.  The “invasive” cross examination means that her story ridiculously does not add up and she will be decimated on the stand.  Her marriage?  She found some sucker to marry her.  Probably some white knight who is going to be her next false allegation victim when he “abandons” her.  I give it about 2 years.  What she doesn’t want to revisit is all the lies that she probably told because they are difficult to keep straight.
    Most telling is TDS not submitting a Chapter 10 request for a Private.  They want to fight it, rather than taking the far safer easier way out, most likely because the Government’s case sucks.
    With all the Congressional pressure on TJAGs coming to light recently and based on my experience with two of the most ridiculous Article 120 Courts-martial I have ever seen at Ft. Benning in 2015 and 2017, the appearance to me is that the Army’s policy is to investigate the complaining witness’s story as little as possible, then just throw the complaining witness on the stand based on her desire to continue with the farce, and let the defense counsel ravage her…..or the baby momma coaching CW to falsely accuse her Dad so baby momma can get custody back.

  4. A Random JAG says:

    The whole thing is bizarre.  If you’re not going to subpoena an unwilling victim to come into court and testify against her will (and let’s be honest, no one does this in the military except for maybe DV cases), then why prefer charges in the first place?

  5. Zachary D Spilman says:

    To provoke the Chapter 10 (separation in lieu of trial), of course, A Random JAG

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

    The theory of, “If you charge them, they will fold….”

  7. stewie says:

    I’ll be the apparent outlier, I see no likelihood that CAAF is going to characterize deciding not to go forward because the victim first says she won’t testify, dismissing, then after dismissal the victim changes her mind as “subterfuge” of the 120-day clock. Ultimately, the government decided to “honor” her wishes…that they didn’t do so at what some consider the appropriate time/quickly enough notwithstanding. If she doesn’t change her mind back, they don’t bring the charges back. Thus, at the time of dismissal, it wasn’t done as a subterfuge. If she’d maintained her position, they wouldn’t have gone forward.
    Now, if folks want to argue that once you have a victim like this it makes no sense legally/logically/morally to go to trial, that’s fair game…but that’s not the issue on the table.

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

    Stewie, she didn’t want to go forward to  begin with.  If they had “honored” her wishes, they wouldn’t have preferred charges.

  9. K fischer says:

    So, do you believe it is proper  for an alleged victim to dictate that she will not participate in a court martial, but would be pleased for an accused to be administratively discharged, possibly with a Chapter 10, whereby the Government prefers charges which it never intended to take to trial?  (I’m assuming the answer is yes, as this happens a lot in the military and not just with sexual assault)
    But would your opinion change if the facts of the case were really weak, particularly considering all the documented evidence of late regarding the Services’ TJAGs and the pressure from Congressnthey have lamented to SJAs and CA’s?  I sure would like to know the facts alleged from both sides regarding this allegation.

  10. stewie says:

    Tami, often alleged victims are reluctant to go forward in the beginning. Some decide to, others don’t. This isn’t that hard, and it isn’t unusual and that fact isn’t even wrong. Now, once she’s started vacillating to the point of leading to dismissal of charges, then you should probably take a hard look as the government about whether to go forward.
    kf, I know you like your version, but the actual historical version doesn’t quite match up, and you confuse whether or not this is subterfuge (the focus of this case) with whether or not the government should have gone forward morally, which is not…and appear to have forgotten I weighed-in on both in my comment which would have answered your question, but let me answer it…again.
    As for history, we had someone who agreed to go to trial, so the government referred. Then that person backed out, thus the government dismissed. Then, a week later, she changed her mind. So the government re-referred. The Gov CLEARLY intended to take these charges to trial. She apparently intended to take these charges to trial but then backed out. At that point, the government went to plan B, chapter 10 (which the defense didn’t agree to by the way) or administrative discharge. Before they could effectuate plan B (because you can’t do an admin sep board in a week), the alleged victim said, no wait, I’m on-board again.
    That’s. Not. Subterfuge.
    It may be a bad decision. And the strength or weakness of that case may factor into whether it is a bad decision. I had a case once that was very strong when I was on the gov side. She went through the 32, did well, but she didn’t want to go forward through the tough process of a CM. So, we didn’t refer, and she was happy with him getting an admin discharge. It wasn’t because she was lying, and it wasn’t because it was a weak case…and if she’d said afterwards, no I changed my mind, let’s do this, we wouldn’t have been doing a subterfuge when we dismissed (granted we weren’t anywhere close to 120 days at that point) and then re-referred in that scenario.
    But subterfuge requires a knowledge that she was going to change her mind at the last second, necessitating a dismissal. And heck, if they thought there was a chance she would agree soon after then they’d have driven on ahead with the trial. She wasn’t going to testify in a week or two, it was going to be months, plenty of time to get her back on-board. The only reason you dismiss the charges is because you think she’s not going to testify, or if she is, you cannot know what she’s going to say.
    And the idea that you would take a case to trial without an on-board alleged victim is silliness.
    Now, I don’t know whether it is a good idea or not to do what they did. I don’t know their alleged victim, I don’t know the strength of their case. Certainly, her behavior sets off alarm bells, and provides fodder for the defense…so if it isn’t a very strong case, I’d probably say, don’t go forward. But that’s not the point of this whole thing, it is…were they doing subterfuge, and the answer to me is clearly no, of course not.

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

    I think the point k fischer is trying to make with his question, and the point I am trying to make, is that your history of this case is incorrect.  The complainant did not want this case to go to trial until after the charges were dismissed the first time. 
    She was clear at the beginning she didn’t want a court-martial.  They preferred charges anyway.  She supported a Chapter 10.  Chapter 10 isn’t coming.  She supports ADSEP board.  Charges dismissed to pursue ADSEP board.  More than 120 days have passed at this point.  Now she wants a court-martial, and the government wants a re-do based on “following her wishes.”
    How does this jive with the Government’s action the first time around, which very clearly does NOT “follow her wishes?”  In fact, completely contrary to her wishes.
    And since she was military, the fact that she wasn’t cooperative initially is a red herring.  But you still have the speedy trial violation that can’t be cured.  And even if she decides to cooperate, her previous objections to the court-martial remain, so what happens if she changes her mind again and gets cold feet right before trial?  That isn’t right.
    I think there’s enough in the record to support the judge’s decision, and that’s the standard.

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

    “Subterfuge” doesn’t always require deception.  “Subterfuge” can also include “expedience.”  Essentially, the Government is using a convenient, self-serving means to get around a rule.  With the Government tying its reasons for dismissal and “re-do” to “honoring the victim’s wishes,” there seems to be a genuine risk that this will happen again if the complainant gets cold feet down the road, which seemed virtually guaranteed with the reasons she gave for objecting in the first place–testifying at multiple hearings, invasive cross-examination, disclosure of mental health records, interruption of her life, “revisiting what happened.”  And now this appeal is adding to the delay.  “ADSEP would be faster than a trial” was another reason she gave for objecting to a trial.

  13. stewie says:

    You keep saying “it isn’t right.” But that doesn’t equate to subterfuge. Subterfuge needs to exist at the TIME of the action. It’s the reason for the action.  There is no reason to believe that they dismissed the charges at the time they did to get around the 120 day clock. At some point after dismissal, she wanted to go forward. That’s a non-subterfuge reason to re-refer. Whether it is right or wrong would depend on facts I don’t have. Sure there’s a risk she backs again, and I’d fully expect the government not to go forward if she does it twice.

  14. Zachary D Spilman says:

    The timing is awfully suspect, stewie. The dismissal occurred on what the prosecution thought was day 111 (but the military judge concluded was actually day 123, because the PHO improperly excluded 12 days). See App. Br. at 13.

  15. k fischer says:

    I’ve read the supplement and answer and it appears that at the time of preferral, she didn’t want to, then she wanted to, then she didn’t want to, then, after dismissal, she wanted to.  Sounds like she changed her mind three times.  Sounds like the MJ recognized she changed her mind three times.  Sounds like ACCA completely disregarded these facts and erroneously stated that the alleged vic only changed her mind ONCE.
    Perhaps a remand back to ACCA to reevaluate their position based on the actual No/Yes/No/Yes sequence of events would be proper.
    If CAAF determines that the subterfuge test includes the “improper reason” prong, then I think that addressing whether prosecutions based on the “whims of the complaining witness” is improper would be required.  I understand there is a DoD regulation advising that a prosecution should not take place if the complaining witness does not want to participate, which the Government argues is a “proper” reason why they dismissed.  But, does that trump an Accused’s right to a speedy trial?  Should a complaining witness be permitted to dictate military justice? 
    And, Zack is correct.  The timing is certainly suspect.  The excuse that “the victim changed her mind, so we had to dismiss” is completely disingenuous in light of the fact that between October 3, 2016 and January 28, 2017, the complaining witness did not wish to participate as stated through her by her SVC. Then, on February 24, 2017, she stated she did.  But, then on March 14, 2017 she didn’t.  But, on April 18, 2017 (four days after charges were dismissed) she did.  The Government should not have preferred when they had a clearly recalcitrant complaining witness who had the advice of the attorney the Army provided to her.
    If I were the CoJ at the Ft. Gordon military justice shop, I would amend the policy to reflect personal injury attorney Ken Nugent’s branding: One call, that’s all!  You are either in or you’re out.  If you say you’re out, then you’re out.  None of this seesaw bs.  Cause ain’t nobody got time for that!

  16. k fischer says:

    Could you please direct me to where you found that the CA referred the case prior to the dismissal without prejudice?  Because I can’t find it.  It sounds like the CA dismissed the case when he could have chosen to refer the case or dismiss it based on the SJA’s advice.

  17. stewie says:

    ZS, the timing would only be suspect if there is a gap between her saying I don’t want to go forward and the dismissal, or if they dismissed before she said, I don’t want to go forward. Otherwise, it isn’t.
    So, we apparently have two criticisms of the government…first that they should be willing to go forward in spite of the wishes of the alleged victim, and second, that the first moment the alleged victim doesn’t want to go forward they should shut it down.
    kf, no I don’t think considering the desires of the alleged victim equates to an “improper reason.”
    And again kf, no the timing isn’t suspect. When they dismissed the charges, she didn’t want to go forward. Then, AFTER charges were dismissed, she did. According to you, when the alleged victim doesn’t want to go forward, they should dismiss charges, but now that they did, they are guilty of subterfuge?
    So, your argument is that avoid subterfuge they should have went ahead with the case anyways after her second “no?” That’s a pretty weird rock and a hard place…if you say “this is the second time she’s said no, maybe we need to dismiss” then it’s disingenuous and suspect, but if you go forward, even though she’s said no twice then why are they going forward with a “recalcitrant witness?”
    I get it, you think this case never should have gone forward to start with (despite neither you nor I knowing much about the strength or weakness of the case which is usually what determines such things)…but that does not equate to subterfuge.

  18. k fischer says:


    ZS, the timing would only be suspect if there is a gap between her saying I don’t want to go forward and the dismissal,

    There was at least a one month gap between her saying that she wanted didn’t want to go forward (the second time on March 14) and the dismissal (April 14).   How much of a gap do you need?

    So, we apparently have two criticisms of the government…first that they should be willing to go forward in spite of the wishes of the alleged victim, and second, that the first moment the alleged victim doesn’t want to go forward they should shut it down.

    Actually, the criticism is that they should not prefer against the wishes of the alleged victim and when they give it the old college try to get the alleged vic to cooperate and she says “yes,” then “No,” 120 days after preferral without the accused being arraigned, then they should shut it down.  For good.   You see, Stewie, once you prefer (or place the Accused in pretrial), you start the running of the 120 day clock, which appears to ACCA to be as useful to the Accused as teats on a boar.
    You are being disingenuous when you say “the first moment the alleged vic doesn’t want to go forward.”  You sound just like ACCA.  Get your facts straight, Stewie.  This wasn’t an alleged vic who changed her mind once.  She changed her mind three times.  And, on the date the Government preferred charges, they DIDN’T have a cooperative witness.  On the day they dismissed, they didn’t have a cooperative witness, which they try to use as a proper reason for dismissal.  So, I guess that begs the question:  If the litmus test for going to trial is having a complaining witness who is willing to cooperate, then why did you prefer in the first place?
    Having said that……After reviewing CAAF’s recent decisions in Carpenter and Robinson, I have little confidence that Hendrix will be successful in his appeal.

  19. stewie says:

    And there’s a REASON he won’t be successful in his appeal, because just because you or others don’t like the reasons why the government chooses to go forward does not equate to subterfuge. A month isn’t that long no. I suspect they spent some time letting her think it over, trying to convince her, etc. At some point, they decided to let it go. And yes the 120 day clock was probably a forcing function at that point…crap or get off the pot so to speak, doesn’t make it a subterfuge either.

  20. Defense Wizard says:

    When I was a TC, the time to let the CW “think it over” was before charges were preferred. A prosecutor ostensibly represents the people, and by policy, the CW’s wishes are taken into account when deciding to go forward.

  21. k fischer says:

    Defense Wizard,
    As a TC, you were an elegant weapon of a more civilized age that brought balance to the UCMJ.  Not as random and clumsy as the Amendments to the UCMJ on and after 2006 made by clueless members of the Imperial Senate.  Nowadays, some Military prosecutors clearly believe they represent the complaining witness whose whims render their subpoena power, safety, and desire to maintain good order and diiscipline impotent.

  22. Son of Skywalker says:

    k fischer,
    Well said.

  23. stewie says:

    Defense Wizard, taken into account means what? That they are dispositive? Or that they are simply one factor one way or the other?
    We surely don’t like it when we take bad cases forward just because the alleged victim wants it, do we not take good cases forward, just because the alleged victim doesn’t want it? Should we not use that time to address/assess whatever it is that might be making the alleged victim want to go forward?
    What about domestic violence cases?