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
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.
• 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