I. Introduction American prosecutors are generally understood to have a lot of power, and that power is often the subject of criticism. But whether American prosecutors’ power is problematic depends on the structure and operation of other components of the criminal justice system the code defining substantive offenses, the capacity and competency of police and investigative agencies, the law of sentencing, the typical mode of adjudication (trials or pleas), prison capacity, and funding levels for enforcement officials and courts.Prosecutors are empowered by some of these other actors and institutions, and they are constrained by others. Positive law gives prosecutors considerable power, especially by granting broad charging discretion, but it also limits that power in a couple of significant respects. Moreover, the mix of prosecutors’ powers, and potential for abuse of power,varies across American jurisdictions. Federal prosecutors are limited in important ways that state prosecutors are not, especially as to plea bargaining. Likewise, state prosecutors face constraints that their federal counterparts do not, particularly as to charging discretion. Whether prosecutor power is problematic depends on other components of the criminal justice system in which that power is exercised. In turn, the flaws of American criminal justice, in turn, arise as much from institutional arrangements that are ill-suited for particular prosecutorial powers as they do from those powers per se.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Table 1: Causal Factors (≥ 10) Causal Factor

Confirmation bias 37 Tunnel vision 24 High-profile crime/media attention 23 Management/supervision issues 22 Careless/incompetent investigation 20 Improper interrogations 20 Rush to judgment 19 Flawed forensics 15 Problematic witness/informant 14 Evidence analysis/logic failure 12 Interagency conflict/DA interference 10

Welcome to military sexual assault investigations and prosecutions.

confirmation bias, in particular, held a pivotal position in the causal structure of wrongful convictions. Faulty assumptions, probability errors, and groupthink often played supporting roles. Cognitive bias affects not just investigators, but also prosecutors, defense lawyers, scientists, military leaders, politicians-indeed, everyone.

“Believe the victim” and victim-centric interviews and investigations require the application of cognitive/ confirmation bias–IMHO deliberately. A presumption of guilt follows which reinforces CB.

Confirmation bias is a type of selective thinking. Once a hypothesis has been formed, our inclination is to confirm rather than refute it. We tend to look for supporting information, interpret ambiguous information as consistent with our beliefs, and minimize any inconsistent evidence. Types of confirmation bias include: (1) the biased search for evidence; (2) the biased interpretation of information; and (3) a biased memory (selective recall). Confirmation bias can cause a detective to interpret information in a biased manner-evidence that supports the investigative theory is taken at face value, while contradicting evidence is skeptically scrutinized. Other manifestations of confirmation bias include the failure to search for evidence that might prove a suspect’s alibi, not utilizing such evidence if found, and refusing to consider alternative hypotheses.

https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf,

just decided by the U. S. Court of Appeals for the Armed Forces.

In Voorhees, the trial counsel (prosecutor) tried to establish his bona fides with the court members during voir dire. Which lead the Court to say:

Despite his self-described expertise, trial counsel’s findings and rebuttal arguments were riddled with egregious misconduct, much of which amounted to clear, obvious error. We are most concerned with trial counsel’s: (1) personal attacks on defense counsel; (2) personal attacks on Appellant; and (3) expressing personal opinions, bolstering, and vouching. We address each in turn (which the Court did). First, trial counsel accused defense counsel of “misplaced lying,” and made the defense theory of the case seem fantastical, saying “defense counsel’s imagination is not reasonable doubt.” Both statements amount to clear, obvious error.

A reasonable observer must ask, why did the prosecutor not know that and refrain from such conduct. (Note that it’s unusual for the appellate courts to name the trial counsel.) Later the Court quotes some of the language used during argument concluding, again, that “These statements are all clear and obvious error.”

Regardless, the Court said, “Although trial counsel’s misconduct amounted to grievous error,” they were not prejudicial because the evidence against the accused was overwhelming, the defense counsel didn’t object, and the trial judge did not sua sponte object and caution the trial counsel. So, the conviction was affirmed. The Court observed that,

Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel. . . . Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial. As we admonished in Andrews, “Military judges are neither mere figurehead[s] nor are they umpire[s] in a contest between the Government and accused;” they too have a “sua sponte duty to [e]nsure that an accused receives a fair trial.” 77 M.J. at 403–04 (alterations in original) (internal quotation marks omitted) (citations omitted). The military judge in Appellant’s case simply allowed trial counsel to ramble on with his improper argument. Similarly, although defense counsel’s failure to object appears to have been a conscious and tactical choice in the instant case, we remind all defense counsel they “owe[s] a duty to the[ir] client[s] to object to improper arguments early and often.” Id. at 404. . . . This case aside, the consistent flow of improper argument appeals to our Court suggests that those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct. As superior officers, these individuals should remind their subordinate judge advocates of the importance of the prosecutor’s role within the military justice system and should counsel them to “seek justice, not merely to convict.” . . . Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel.

On appeal to AFCCA that court set aside the finding of guilty to sexual assault, leaving an Article 133 conviction in place. The court remanded for a new sentencing hearing, after which the case went back to AFCCA and then to CAAF.

On initial appeal.

https://afcca.law.af.mil/afcca_opinions/cp/voorhees-38836.u_corrected_copy.pdf

After the sentence rehearing.

https://afcca.law.af.mil/content/afcca_opinions/cp/voorhees_-_38836reh.u.pdf

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

Note: trial defense counsel did not object at trial! So, the NMCCA reviewed for plain error. Slip op. at 10. See United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013); United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017).

The NMCCA cited United States v. Balboa, 33 M.J. 304 (C.M.A. 1991) for the proposition that the sentencing authority may consider pretrial confinement as mitigation or aggravation. Slip op. at 13. Ultimately the NMCCA found no error and gave no relief. But again, trial defense counsel had not objected.

Based on our superior court’s holding in Balboa, we cannot say that it was plain error for the trial counsel to argue that the members should increase their sentence to confinement for the express purpose of nullifying the Allen credit determined by the military judge in order, ostensibly, to permit the appellant to complete five years of treatment. Notwithstanding the C.A.A.F.’s language in Balboa, however, we would not condone a trial counsel’s effort to “appeal” a military judge’s Allen or Article 13 credit determination to members. Our holding might be different in a case where the issue was properly preserved for appeal.

In Balboa, Senior Judge Everett observed:

It seems curious (and more than coincidental) that the confinement adjudged was “68 days, plus 12 months”—not 14 months or 15 months—when the court-martial members knew that their announced sentence to confinement would be reduced by precisely 68 days. This Court does not need an appellate crystal ball to discern the real likelihood that, as a practical result of the members’ action, appellant has been denied the legally required credit for his pretrial confinement.

Balboa, 33 M.J. at 307-08 (Everett, S.J., concurring).

It would seem that the current law may now be that while an accused should get credit for PTC, it is not required if the sentencing authority doesn’t think it appropriate. We’ll have to see if the issue comes up again similar to the facts of Howell with a defense counsel objection. I would imagine Navy TCAP will make much ado about Howell and you may well see the issue again.

So, consider,

• Asking the MJ not to advise the members of any pretrial confinement credit?
• Move in-limine to prohibit TC arguing for nullification? Note, Howell is a retrial case. So it’s possible that there will be significant PTC in any retrial case. My other concern is that the advice to members about PTC gives them information or guidance on what the prior trial adjudged–something not raised in Howell.
• Object!

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

WASHINGTON / May 23, 2019 – Over 100 law professors, practicing attorneys, scholars, and concerned citizens have endorsed a petition calling on the Department of Justice to promptly cease its support for guilt-presuming investigations. Commonly known as “victim-centered,” such methods vitiate notions of fairness and investigative impartiality and contribute to the problem of wrongful convictions.

“Victim-centered” methods such as Start By Believing advise investigators to start with a presumption of guilt, seek to “corroborate the victim’s account,” and write their reports using the “language of non-consensual sex.” (1) Such approaches violate ethical codes that require investigators to “present such evidence impartially and without malice.” (2)

Another “victim-centered” method is known as “trauma-informed,” which posits the cognitive effects on persons experiencing traumatic events. But experts have dismissed such notions as “psychiatric folklore,” lacking scientific verification, and even as “junk science.” (3)

Victim-centered methods have been discredited by a number of groups. The Air Force Office of Special Investigations found such methods to be “inappropriate and irresponsible.” (4) In 2015 the Arizona Governor’s Commission to Prevent Violence Against Women issued a letter saying Start by Believing “creates the possibility of real or perceived confirmation bias” and “strongly cautioned” state law enforcement agencies from using Start By Believing. (5)

The petition demands that the Department of Justice “promptly suspend its support for programs that call on detectives and investigators to reject their most basic of principles of fairness and that threaten to unravel the very fabric of our nation’s justice system.”

Journalist Emily Yoffe has termed victim-centered theories “junk science” because of their lack of scientific support and the circular logic they utilize. (6) Additional information is available in the CPI White Paper, ‘Believe the Victim:’ The Transformation of Justice. (7)

Links available here:

http://www.prosecutorintegrity.org/pr/over-100-law-professors-others-call-on-doj-to-stop-junk-science-victim-centered-methods/

This means, as a rule, you must prove your innocence.

Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.

Yes, we know this to be the law, the issue is whether it is practiced. I would add that a discovery request, which I call a Kyles Request (think Kyles v. Whitley, 514 U.S. 419 (1885)), should be part of your practice. We certainly have some well-documented instances of prosecutor error in military cases. Recently, former Chief Judge Effron made a recommendation through the Military Justice Review Group to adopt a military prosecutors manual in the style of the U. S. Attorney’s Manual.

SJ notes:

• In the District of Nebraska, and as suggested by Judge Kozinski, [they] already issue mandatory Brady/Giglio disclosure orders, the violation of which would justify discipline. More specifically, federal judges should use as a disciplinary gauge, and require federal prosecutors to scrupulously comply with, part 9-5.001 (Policy Regarding Disclosure of Exculpatory and Impeachment Information) and part 9-5.100 (“Giglio Policy”) of the U. S. Attorneys’ Manual. That Manual is a full and fair exposition of the law. Indeed, it explicitly “errs” on the side of disclosure if there is a question.[v] The Manual would serve as an excellent policy model for state prosecutors to adopt.

They may err because:

“The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Kyles, 514 U.S. at 439 (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

• Federal judges should not hesitate to employ their independent[vi] disciplinary authority to reprimand, suspend, or disbar prosecutors who violate our orders and the requirements of the Manual. See, e.g., NEGenR 1.7(b) & NEGenR 1.8(g). These judges should not wait for or depend on state disciplinary authorities to act. Nor should they wait for DOJ’s Office of Professional Responsibility to awake. In short, we federal judges are not and should not serve as potted plants, particularly when it comes to Brady/Giglio violators.[vii]

LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.” All this caused Capt X (the defense counsel) to audibly sob at counsel table, and she was unable to continue.

Unfortunately, it appears that the words and actions of the trial counsel (prosecutor) caused the defense counsel to make “several decisions about the appellant’s representation that were against her client’s interest, against the advice of the DHQE, and consistent with a concern for her and her husband’s situation.”

Sadly, today we report the decision in United States v. Hale, decided 31 May 2017, by the Navy-Marine Corps Court of Criminal Appeals. Of seven assignments of error raised on appeal, the court reversed on this issue: “III. That the appellant received ineffective assistance from his trial defense counsel, who were laboring under a conflict of interest[.]”

We find merit in the appellant’s third assignment of error. We find that his representation was adversely affected by a conflict of interest and that his convictions should be set aside under Cuyler v. Sullivan. Separately, we also find that the undisclosed conflicts of interest in this case were stark, corrosive to the fairness of the proceedings, and resistant to a standard prejudice analysis. On the basis of our review of the entire record, we judge that the findings should not be approved. . . . In his third assignment of error, the appellant alleges that his lead trial defense counsel had a conflict of interest, and that his trial defense counsel were ineffective. This assignment of error is factually related to his claim of prosecutorial misconduct. Because we resolve this case on grounds of ineffective assistance of counsel, we do not reach the issue of prosecutorial misconduct or the other assigned errors. But trial counsel’s actions—and defense counsel’s responses to them—are relevant to the appellant’s ineffective assistance and conflict claims. . . . First, LtCol CT made it clear that he took personal offense at trial defense counsel’s advocacy, and that he did not like the way defense counsel were trying the case. We expect that trial counsel do not normally take defense counsel’s tactics personally. In this case, LtCol CT did, and sometimes for no apparent reason.

Regrettably, this attitude showed throughout the case, both on and off the record.

There are other examples of off-the-record exchanges that tended to aggravate the potential conflict. One occurred after a motion session while counsel were still in the courtroom. LtCol CT told Capt KC, “If [you] were [your] husband, I would punch you in the face right now.”86 Another time, while discussing a defense discovery request, LtCol CT told Capt JS, “If you were my peer, I would have told you to f*** off.

I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.” II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

How does this happen?

Can a trial counsel think this argument is even possible, let alone appropriate. We’ll have to see because we don’t know when or how the Appellant was confronted by the witness(es). If this was after the advice of rights this is clearly wrong. There may be other circumstances, very narrow, where it might be appropriate to offer and then argue such actions of a suspect as consciousness of guilt.

Did not the defense counsel object? No, because the issue is being raised as “plain error.” That means the defense counsel did not object and therefore the issue is waived absent plain error. The plain error doctrine is a limited exception to the waiver rule. It would have been better for defense counsel to object to such statements. I don’t think there’s a tactical consideration here. Even if the military judge overrules the objection the error is preserved and the court may deal with it directly without having to worry whether the plain error doctrine applies.

To overcome waiver, appellant must convince (1) there was error; (2) that it was plain or obvious; and (3) that the error materially prejudiced a substantial right. United States v. Powell, 49 M.J. 460, 463 (1998). We will reverse for plain error only if the error had “an unfair prejudicial impact” on findings or sentence. Id. at 465.

This comes from:

Under F. R. Crim. Pro. 52(b): plain-error where there is an (1) error, (2) that is plain, and (3) that affects substantial rights, appellate court may correct an error not raised at trial, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See e.g., Johnson v. United States, 520 U.S. 461 (1997) .

Appellant, a married African-American adult of 27 years, raises a complaint under Grostefon which merits discussion. He asserts government counsel referred to him in a racially offensive manner by calling him “boy” twice. Specifically, appellant characterizes as racial epithets government counsel’s remark in closing, “This old boy was ‘Courtin’ n Sparkin’.’” (quotations in original), and subsequent argument in rebuttal, “And they keep harping on the fact that he’s not a big-ole boy.” We have carefully considered the context surrounding counsel’s use of the word, “boy,” noting our nation’s highest court’s view thereof: “Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” In this case, appellant was elsewhere described as acting as if he had an immature crush on SPC PK, and we are confident in concluding that this—rather than “racial animus”—was the backdrop for the comments. Notwithstanding this judgment and our associated conclusion that appellant has not demonstrated plain error, we invite counsel to more deliberately choose their words.

United States v. Dixon, CCA No. 20140619 (A. Ct. Crim. App. 23 May 2016).

A senior judge has criticised a police detective and the Crown Prosecution Service for their handling of an accusation of gang rape after the case against four young men collapsed just as their trial was due to begin. Judge Jamie Tabor QC said DC Ben Lewis of Gloucestershire police had got too close to the complainant and did not understand his job properly. Tabor said the officer and the CPS had to bear responsibility for not disclosing “game-changing” material to the defence teams of the men who were due to stand trial. The trial had been due to begin at Gloucester crown court but at the last moment the prosecution offered no evidence and the four defendants were cleared. After the case collapsed, the defendants’ legal team accused Lewis in court of “cherry picking” evidence supportive of the prosecution’s case and “airbrushing out of the picture” anything that could have helped the men. It also emerged as the trial was due to begin that police failed to disclose that the complainant was a witness to an alleged rape on an army base in October 2014 and that there were inconsistencies in her evidence. The alleged rapist, a soldier, was later cleared. Tabor, the recorder of Gloucester, said Lewis had a “limited grasp of responsibilities” as disclosure officer – the person responsible for handing over relevant information to the defence.

You will have read or heard me talk about confirmation bias at work among MCIO’s and Trial Counsel. I heard today of a military case where the MCIO was actually having an affair with the complaining witness at the time of the investigation and trial, and allegedly the prosecution initially failed to disclose this to the defense.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

https://www.justice.gov/usam/title-9-criminal

The probable cause standard is the same standard as that required for the issuance of an arrest warrant or a summons upon a complaint (See Fed. R. Crim. P. 4(a)), for a magistrate’ s decision to hold a defendant to answer in the district court (See Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provis ions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a Federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well.

And the Criminal Resource Manual.

There seems much in them that could be copied almost word for word.

And perhaps now it is time to adopt Rule 5.1, Fed. R. Crim. Pro., either by statute or executive order? IMHO, the President can amend R.C.M. 405, through the UCMJ art. 36 power, and adopt a rule similar to that found in federal district court.

https://www.law.cornell.edu/rules/frcrmp/rule_5.1

(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

Under federal practice, a USA can still prosecute by restarting with new evidence should it arrive later and the prosecution not being barred by the statute of limitations.

Keep this in mind when the prosecution want’s to admit documents or reports.

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

In the recent reopened PCR proceedings, Adnan made the claim that the State violated the Brady doctrine by failing to disclose that an AT&T disclaimer about incoming calls being unreliable for determining location applied to Exhibit 31 (which did not include the disclaimer or the page indicating that the exhibit was a Subscriber Activity report). So, is there an analogous case finding a Brady violation under similar circumstances? Absolutely.

In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010).

Proposed D.C. Local Rule Would Expand Prosecutors’ Brady Obligations

Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I’ve noted before, has long advocated for Brady reform.

Supreme Court of Ohio Gives Slap of the Wrist to Prosecutor Who Catfished Alibi Witnesses

I tweeted about the Brockler case yesterday. The only thing more surprising than the shocking misconduct of the prosecutor being “disciplined” is the way in which he was “disciplined” by the court.

The prosecutor created a fictitious Facebook page, and used it to “catfish” several alibi witnesses. He failed to immediately acknowledge this when confronted by another prosecutor. In fact he maintained that such deceptions are lawful.

Brockler continued to maintain that his conduct was ethical, acknowledging that his conduct violated the letter of the law, but claiming that there should be an exception for “prosecutorial investigation deception.” The Board of Professional Conduct disagreed with Brockler but merely “recommended that he be suspended for one year, fully stayed on conditions.” The Supreme Court of Ohio later agreed, finding that “the misconduct was an isolated incident in an otherwise notable legal career.” In other words, unless Brockler does something else wrong, he will not be suspended. I fundamentally disagree with the Supreme Court of Ohio, and so did Judge O’Donnell, who dissented with the following one sentence opinion: “Respondent engaged in unacceptable dishonest conduct that materially affected the administration of justice, and I would impose an indefinite suspension.” I will add that Brockler himself admitted that this wasn’t a one time thing; instead, he said that he had previously used the Facebook ruse in “a prior case.” Moreover, it’s not as if Brockler acknowledged his serious error in judgment and immediately made amends. Instead, he first covered up his actions and later claimed that they were justifiable and commonplace. To me, this justified a lengthy suspension, maybe even disbarment.

Can the actions of military prosecutors raise the specter of Unlawful Command Influence?

Maybe.

That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals. (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August 18, 2015)[ https://www.court-martial-ucmj.com/files/2016/03/USvGarcia.pdf].

[W]e first conclude government counsel’s multiple improper references to Army-wide efforts to respond to and prevent sexual assault created the appearance of unlawful command influence. As set forth below in our prejudice analysis, we conclude that the proceedings were unfair and that the government’s persistent and improper references to Army policy were a source of an unfair trial.

There are some additional lessons for prosecutors.

During her rebuttal argument on findings, trial counsel made two improper references to appellant’s exercise of his constitutional rights. First, trial counsel argued with respect to appellant’s decision to call . . a witness[.] The second instance of improper argument occurred during government counsel’s findings argument when she invited the panel to convict appellant because of his exercise of his Sixth Amendment right to confront witnesses against him.

In 2013, SSG G. Garcia stood trial for three specifications under UCMJ art. 120, of rape, a specification of non-consensual oral sex, and a specification of forcible sodomy, of a Specialist (a Soldier two ranks lower than Garcia). In addition he was accused of maltreating four other Soldiers. After a contested trial, before a panel of officers and enlisted members, he was found guilty of the charges involving the Specialist and of two of the maltreatment charges. He was sentenced to a dishonorable discharge, reduction to paygrade E-1, and five years confinement.

The Specialist alleged that the offenses happened between 1 April 2009 and 30 May 2009 at a guesthouse in Germany. Both she and Garcia were assigned to a unit at Wiesbaden, Germany. She did not report these allegations until she had viewed the movie The Invisible War in 2012.

The first trial happened during the height of the media and Congressional attention to military sexual assaults. And President Obama had recently made remarks about the handling of military sexual assault cases. The military judge denied a defense motion to dismiss for unlawful command influence, but allowed substantial voir dire of the panel about potential bias regarding the handling of sexual assault cases.

The Specialist testified at the first trial that she could not report the events that night because she had run out of minutes on her cellphone and she did not have a way to contact anyone. After the alleged assaults she spent the next day with Garcia touring the local town. [link] Over the next few weeks she continued to interact with Garcia, including sending him several personal photographs. About two weeks she accepted an invitation from Garcia to visit him at the town where he was living and spent the day touring the town with him. After this, their “relationship” became distanced. It appears she was seeing another Soldier who she married.

At the time of the alleged assaults the Specialist was serving as a paralegal in the brigade judge advocate office. While in that office she became aware of the investigations into Garcia’s alleged maltreatment of other Soldiers, but she did not report the offenses against herself. She later testified that she did not think she would be taken seriously if she made her allegations at the time of those ongoing investigations.

Civilian military law attorney Philip D. Cave represented SSG Garcia in the appeal of this case before the Army Court of Criminal Appeals. The court set aside the convictions regarding the Specialist, but affirmed the convictions on the two maltreatment charges. The court ordered that the dismissed charges could be retried or a sentence rehearing could be held on the maltreatment charges only.

On 14 March 2016, retrial began for the charges of sexual assault against the Specialist. The commander at Fort Sill determined that it was in the best interest of the Army and the Specialist to have a retrial. Civilian military defense lawyer Cave represented Garcia at this retrial.

Garcia by now had served 860 days of the five year sentence. He had had been confined for a short period at the Mannheim, Germany, confinement facility. He was transferred first to the Navy Consolidated Brig Miramar and then to the Navy Consolidated Brig Charleston. He was released from confinement as a result of the Army court decision, in September 2015.

The retrial began before a panel of officer and enlisted members. The case began with a strange twist. After group voir dire civilian military defense attorney Cave made a motion for a mistrial, which was denied. Cave then made a motion to excuse the whole panel which was granted. After these events, Garcia changed his forum to military judge alone.

At the retrial the Specialist testified substantially the same as her first testimony. There was one very significant change. The Soldier now claimed that she made two phone calls the night of the assault to a friend in Washington state. She agreed that she told Army CID, in August 2012, that she’d only made one phone call the night of the assault which ended abruptly when she ran out of cell phone minutes; she agreed that she testified in an Article 32 hearing in January 2013, that she only made the one phone call; and she agreed that she had testified at the first trial to making only one call that night before the alleged assaults. On retrial, she testified that she called and reported the assault that night to her friend by cellphone. She testified that she did not remember the second call until a few weeks before the retrial began. The person whom she allegedly called did not testify at the retrial. This same friend had not testified at the first trial.

Garcia testified at the retrial. He denied any sexual activity or assault at the guest house as alleged by the Specialist. However, he admitted that he and the Specialist had consensual sex at his home during their second time together several weeks later.

Garcia was found not guilty of the sexual assaults against the Specialist.

After a sentencing hearing on the remaining charges, Garcia was sentenced to a bad conduct discharge, reduction to paygrade E-3, and two months (60 days) confinement. He was given 860 days confinement credit. It should be noted that the maximum possible confinement he could have received on the remaining charges was two years.

The appeal process will begin anew.

Armstrong v. Daily, et. al., is a case out of the Seventh. The M-W Journal Sentinal extracts this:

He brought a civil rights suit against the prosecutor on his case, John Norsetter, and two crime lab workers, Karen Daily and Dan Campbell. All three sought to have Armstrong’s suit dismissed on immunity grounds, but the 7th Circuit U.S. Court of Appeals affirmed the trial judge’s refusal to grant that request: “Armstrong alleges a shocking course of prosecutorial misconduct,” the court wrote. “According to the complaint, the prosecutor quickly fixated on Armstrong as the murderer and sought to build a case against him by any means necessary. “Those means included destroying potentially exculpatory evidence from the crime scene, arranging for the highly suggestive hypnosis of an eyewitness, contriving suggestive show – ups for identification, and concealing a later confession from the true killer that was relayed by a person with no apparent motive to fabricate the report. “Finally, the prosecutor enlisted state lab technicians to perform an inconclusive DNA test that consumed the last of a sample that could have proven Armstrong’s innocence and pointed to the true killer. If these allegations are true — and some are based on the state court’s factual findings — the prosecution of Armstrong was a single – minded pursuit of an innocent man that let the real killer to go free.”

On another front, I’m sure you have seen this reported in Slate.

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.

At petitioner’s trial in a state court in which he was convicted of murder, the principal state witness, an accomplice then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State’s Attorney that he had received no promise of consideration in return for his testimony. The Assistant State’s Attorney had in fact promised him consideration, but he did nothing to correct the witness’ false testimony. The jury was apprised, however, that a public defender had promised “to do what he could” for the witness. The failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment. Pp. 360 U. S. 265-272. (a) The established principle that a State may not knowingly use false testimony to obtain a tainted conviction does not cease to apply merely because the false testimony goes only to the credibility of the witness. Pp. 360 U. S. 269-270. (b) The fact that the jury was apprised of other grounds for believing that the witness may have had an interest in testifying against petitioner was not sufficient to turn what was otherwise a tainted trial into a fair one. Pp. 360 U. S. 270-271.

Watch and listen to oral argument in Baca v. Adams. For the meat, you may want to advance to minute 17, although you get a better understanding from starting at the beginning. [youtube https://www.youtube.com/watch?v=2sCUrhgXjH4&w=560&h=315] A point on the video – why is this guy arguing for the State. Where is his boss? This guy was put up there as a matter of failure in leadership. Surely the attorney general and his supervisor had to know this case may go difficult.

If you didn’t have time to view, something of a decent summary can be found in the New York Observer.

A magistrate and the California Court of Appeal found that California deputy district attorney Spira lied under oath, testifying against a criminal defendant and in support of a lying “jailhouse snitch” who was placed on the witness stand in apparent subornation of perjury. Making matters worse, the California Attorney General fought “tooth and nail” to keep the transcript of the relevant hearing from the California Court of Appeal. Read more at here

Why is this relevant – well the co-accused’s testimony and the complaining witness’s testimony in a 120? To what effect is it a matter of direct evidence that a complaining witness received a transfer as a result of making a sexual assault complaint? What about the TC who denies the complaining witness has received a benefit as a result of the complaint.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting. The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount. The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice. That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations. The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary. And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim. So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything. The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial. United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement. For example, by executive order the President has declared that certain matters may not be bargained away. R.C.M. 705(c)(1)(B). An acceptable term is restitution. As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial. That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto. To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that. Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal. For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer. It is far better to enter negotiations informed, rather than have a potential problem on appeal.

A Connecticut appeals court decided to send a message to a prosecutor accused of appealing to jurors’ emotions when it reversed the conviction of a man accused of killing a bar owner in 1998 and ordered a new trial. The appeals court opinion (PDF) said Assistant State’s Attorney Terence Mariani Jr. of Waterbury made improper arguments in the trial of Victor Santiago, as well as in previous cases, the Associated Press and the Connecticut Law Tribune report. “We believe that nothing short of reversal will have the effect of deterring him,” the court said.

h/t ABA journal