James J. Duane, reminds us of the need to pay attention to word choice in his article, “The Right to Remain Silent: A New Answer to an Old Question.”

There is no official language that a witness is required to employ when invoking the privilege against self-incrimination. As one federal circuit court recently observed, “A witness’s answer could range from ‘I refuse to answer on the ground that my answer may tend to incriminate me’ to the more mundane ‘On the advice of counsel, I decline to answer.’” Evans v. City of Chicago, 513 F.3d 735, 740 n.4 (7th Cir. 2008).

One point the author makes is that the usual language implies the person is guilty but refuses to admit it. While that may not be admissible in court (Duane offers examples where it could get to be evidence), it casts a pall over the investigation.

Duane suggests one option is:

“On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which—according to the United States Supreme Court—protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime that they did not commit.”

He suggests the expanded language is better than just saying “I decline to answer based on my Fifth Amendment right to silence.” I would add that should you invocation become “evidence” either deliberately or accidentally, the broader language would go over better with the Members (jury).

The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

Unanimous verdicts at court-martial are not currently required by law. Under UCMJ, a guilty verdict in a general court-martial, which is the most serious type of court-martial, can be reached by a two-thirds majority of the members of the panel. This means that a defendant can be convicted of a crime even if one-third of the panel members do not believe that they are guilty.

However, there is a growing movement to require unanimous verdicts in courts-martial. In 2023, the House of Representatives passed a bill that would have required unanimous verdicts in courts-martial. However, the bill was not passed by the Senate.

There are several arguments in favor of requiring unanimous verdicts in courts-martial. One argument is that it would protect the rights of service members and ensure that they are not convicted of a crime unless all members of the jury agree that they are guilty. Another argument is that it would promote fairness and accuracy in the military justice system.

There are also some arguments against requiring unanimous verdicts in courts-martial. One argument is that it would make it more difficult to convict service members of crimes. Another argument is that it would be more difficult to reach a verdict in some cases, which could lead to hung juries. If the principle of innocent until proven guilty beyond a reasonable doubt is to be maintained, then appropriate “difficulties” in getting a conviction ought to be followed.

The debate over unanimous verdicts in courts-martial is likely to continue. It is an important issue that has implications for the rights of service members and the fairness of the military justice system. Unfortunately, there is betting that the Supreme Court will give deference to Congress as it usually does when Congress acts under its “Make Rules” authority to govern military discipline and justice.

Congress is subject to the Due Process Clause when legislating in the area of military affairs, and that Clause provides some measure of protection to defendants in military proceedings. But in determining what process is due, courts “must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U. S. Const., Art. I, §8.”

In the meantime, Congress has been paying some attention to the issue, as noted by the bloggers at Save Our Heroes.

Rebecca Kheel reported that Court-Martial Convictions Would Need Unanimous Jury Verdicts Under a Measure Added to Defense Bill. Military.com, 17 July 2023. Indications are that proposal won’t be adopted. UCMJ, court-martial, air force court, navy court, army court

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

Shortly after Lattin comes Shields, another cellphone search case. The case presents dueling experts where, as you would expect, the Government expert was arguably given more “credibility” than the defense expert. When DCFL or government computer forensic “experts,” tell you they used the best and most current methods, you should not always believe that. Shields is a case where the DCFL used bad methods that ended up creating a fishing expedition. The court seemed to agree that the method wasn’t the best, but–it was good enough for government work.

In each case, the investigators were looking for texts, images, or data for a specific date or short time period. Forensic experts–good ones–will tell you that using proper methods readily available in the Atom or Cellebrite applications can make it relatively easy to create a narrow or focused search for items within a specified time period. Then, once the data is extracted for that time period, additional search criteria can narrow the data to that which is relevant to the reasons for the search. This, of course, is a little more time-consuming than a general search which, in light of Shields and Lattin, they might get away with.

These are matters–the law of the Fourth Amendment and issues of particularity and scope and cellphone or computer forensics that your military defense counsel needs to know about.

A jokester might suggest that the MCIO theme song might be ‘Scrolling Down the River on a Sunny Afternoon.’

If you do have leisure time on the river, you might take Digital Rummaging with you to read along the way.

Attorney Cave of Cave & Freeburg, LLP, is co-counsel in a petition for certiorari to be filed in Lattin v. United States.

Give us a call if you want to talk about representation by Cave & Freeburg, LLP as your military defense counsel.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Unfortunately, the military lawyers in the Cabrera case did not do what we would have done. In Cabrera, the military defense counsel properly objected to the second trial but then allowed the second trial to continue without taking any further action to protect his constitutional right to be protected from double jeopardy. They should have filed a Writ and Motion for a Stay of Proceedings pending the resolution of the Writ Petition. That’s what we did in Murillo. Cabrera was convicted and sentenced to confinement. It was on appeal, years later, that the issue of Double Jeopardy was decided in his favor and the charges dismissed. While that decision was being made, Cabrera was in confinement for several years. The case is United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020). (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

NOTE: The Double Jeopardy Clause does NOT prohibit the state and the military from prosecuting you for the same offense(s). This concept comes from the Dual Sovereign Doctrine.

Should you be facing court-martial and the charges are dismissed during the trial, please contact us to discuss your options if there is a potential that the prosecution will make a second attempt to prosecute you on the same charges.

mljucmj@court-martial.com for related appellate issues nathan.freeburg@freeburglitigation.com for representation in a second trial

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or 2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD; To avoid an ineffective assistance of counsel claim, such as in Padilla v. Kentucky, please ensure (especially for those supervising line Defense Counsel) that the defense attorney advises the client of a mandatory, and thus ‘direct’ consequence of such a sentence, viz., a federal felony, especially if they are avid hunters, target shooters, skeet shooters, etc., they cannot possess firearms or ammunition!

_____________________________ 18 U.S.C. § 922:

(g) It shall be unlawful for any person—

* * * * *

6) who has been discharged from the Armed Forces under dishonorable conditions;

* * * * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. ______________________

Needless to say, I’m working on a case where [client] got a DD over 14 years ago, who has been a hunter all of his life – at least until now – when he went to buy a new shotgun for next Fall’s deer season, popped up on the background check as being “ineligible” to possess. While they didn’t sell him that firearm, ATF showed up at his house a few days later and asked if he had “any firearms” in the house, and he dutifully showed them his 2 shotguns, and 3 rifles [along with @ 200 rounds of ammo], which he surrendered in lieu of arrest. The US Attorney’s Office is not pressing this as they’re not interested in adding to Padilla and its progeny, and (at least for now) is looking to simply forfeit the confiscated weapons.

Of course there’s nothing in the RoT remotely discussing this mandatory prohibition, so add it to the stuff you advise clients. As an aside, I think it fair game to get the Court to judicially note the above statute as a mandatory consequence of a Dismissal or DD, and if the discharge isn’t mandatory especially to argue for no more than a BCD if that.

Be advised.

Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of voluntariness are likely to be impaired by a systematic bias in social perception. Fact finders are likely to underappreciate the degree to which suspects feel pressure to comply with police officers’ requests to perform searches. These findings suggest that decision makers judging the voluntariness of consent consistently underestimate the pressure to comply with intrusive requests. This is problematic because it indicates that a key justification for suspicionless consent searches—that they are voluntary—relies on an assessment that is subject to bias. The results thus provide support to critics who would like to see consent searches banned or curtailed, as they have been in several states. The results also suggest that a popular reform proposal—requiring police to advise citizens of their right to refuse consent—may have little effect. This corroborates previous observational studies that find negligible effects of Miranda warnings on confession rates among interrogees, and little change in rates of consent once police start notifying motorists of their right to refuse vehicle searches. We suggest that these warnings are ineffective because they fail to address the psychology of compliance. The reason people comply with police, we contend, is social, not informational. The social demands of police-citizen interactions persist even when people are informed of their rights. It is time to abandon the myth that notifying people of their rights makes them feel empowered to exercise those rights.

Virginia is in the Fourth Circuit which, I believe, has a reputation as slightly conservative leaning.

United States v. Abdallah, ___ F.3d___ (4th Cir. 18 December 2018). Code 45 Alumni and friend Jim Wynn is one of the panel members. This case involves two issues: invocation of the right to silence and the all-important Brady issue.

Invocation.

To invoke the right to remain silent or the right to counsel and thereby cut off questioning, the suspect’s invocation must be “unambiguous.” Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010) (request to remain silent); Davis v. United States, 512 U.S. 452, 459 (1994) (request for counsel). An invocation is unambiguous when a “reasonable police officer under the circumstances would have understood” the suspect intended to invoke his Fifth Amendment rights. Tice v. Johnson, 647 F.3d 87, 107 (4th Cir. 2011); Davis, 512 U.S. at 459. Accordingly, “a suspect need not speak with the discrimination of an Oxford don” to invoke his Fifth Amendment rights. Davis, 512 U.S. at 459; see also Emspak v. United States, 349 U.S. 190, 194 (1955) (explaining that “no ritualistic formula or talismanic phrase is essential in order to invoke” Fifth Amendment rights). This objective inquiry “‘avoids difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity.” Thompkins, 560 U.S. at 381-82 (citing Davis, 512 U.S. at 458-59). In its suppression memorandum, the district court found that “Defendant interrupted Agent [Lewis’s Miranda warnings] and stated that he ‘wasn’t going to say anything at all.'” Abdallah, 196 F.Supp.3d at 600 (emphasis added). Numerous courts—including this Court—have held that materially indistinguishable statements amount to an unambiguous invocation of Fifth Amendment rights. For example, in Tice v. Johnson, this Court took the position, in a habeas case, that when a defendant told interrogators, “I have decided not to say any more,” he unambiguously invoked his right to remain silent. Tice, 647 F.3d at 107 (“I have decided not to say any more.”); see also Jones v. Harrington, 829 F.3d 1128, 1140 (9th Cir. 2016) (“I don’t want to talk no more”); United States v. McCarthy, 382 F. App’x 789, 791-92 (10th Cir. 2010) (“I don’t want nothing to say to anyone.”); McGraw v. Holland, 257 F.3d 513, 515, 518 (6th Cir. 2001) (“I don’t wanna talk about it.”); Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005) (“[T]he Supreme Court [never] has required that a suspect seeking to invoke his right to silence to provide any statement more explicit or more technically-worded than ‘I have nothing to say.'”); United States v. Reid, 211 F.Supp.2d 366, 372 (D. Mass. 2002) (cited favorably in Tice, 647 F.3d at 107) (“I have nothing else to say.”).

Brady.

Under Brady v. Maryland, Defendants are entitled to the disclosure of evidence that is “both favorable to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987); see also Brady v. Maryland, 373 U.S. at 87. Evidence is favorable “not only when it tends substantively to negate guilt but also when it tends to impeach the credibility of a key witness for the prosecution.” Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995). 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.” Kyles v. Whitley, 514 U.S. 419, 433 (1995). In a typical Brady case, a defendant has discovered exculpatory evidence after trial, which the defendant alleges the government unconstitutionally suppressed. King, 628 F.3d at 702. In these cases, the defendant establishes a Brady violation proving the materiality and favorability of the withheld evidence. Id. (citing Kyles, 514 U.S. at 433). But in some cases, like Defendant’s case, the government “may possess potential Brady material that it deems privileged or that is otherwise confidential.” United States v. Trevino, 89 F.3d 187, 189 (4th Cir. 1996). Because the defendant does not have access to the confidential material, the defendant “cannot possibly know, but may only suspect, that particular information exists which meets [Brady’s] requirements.” Love, 57 F.3d at 1313. In such cases, “a defendant need only make ‘some plausible showing’ that exculpatory material exists.” King, 628 F.3d at 703. To make this showing, the defendant must “identify the requested confidential material with some degree of specificity.” Id. Specificity ensures that the government’s Brady obligations do not become “unduly burdensome,” Monroe v. Angelone, 323 F.3d 286, 316 (4th Cir. 2003), and that the defendant does not conscript the court for “a groundless fishing expedition,” King, 628 F.3d at 703. Once the defendant identifies specific evidence that could plausibly be favorable to his defense, the defendant “does not become entitled to direct access to the information to determine for himself its materiality and favorability.” Love, 57 F.3d at 1313. Rather, the defendant is “entitled, in order to secure the basic right, to have the information he has sufficiently identified submitted to the trial court for in camera inspection and a properly reviewable judicial determination made whether any portions meet the [Brady] requirements for compulsory disclosure.” Id. Because the defendant is entitled to in camera review, the district court cannot solely “rely on the government’s good faith” as a basis to avoid review. King, 628 F.3d at 702.

*Note, Davis was on appeal from CAAF.

United States v. Burfoot, 899 F.3d 329 (4th Cir. 2018). Duplicitous pleadings.

United States v. Bell, 901 F.3d 455 (4th Cir. 2018).

The “informer’s privilege,” which protects a confidential informant’s identity, “is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information [about crimes]” to law enforcement. Roviaro v. United States , 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro , the Court declined to adopt a bright-line rule for determining when a defendant may pierce the privilege, stating that the issue instead calls for case-by-case “balancing [of] the public interest in protecting the flow of information [to law enforcement] against the individual’s right to prepare his defense.” Id. at 62, 77 S.Ct. 623. Whether disclosure should be ordered therefore depends “on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id. And in applying Roviaro , we have held more particularly that “the government is privileged to withhold the identity of [an] informant when [he] was a ‘mere tipster,’ or was used only for obtaining a search warrant, but that failing todisclose the informant’s identity more likely amounts to error when the informant was an active participant in the events leading to the arrest of the accused.” United States v. Gray, 47 F.3d 1359, 1365 (4th Cir. 1995) (emphasis added) (citations omitted).

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) .

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.

The notorious CDR (judge)(Art. 32 IO) Monahan has this piece.

A PROPOSAL TO CONFORM MILITARY RULE OF EVIDENCE 305 IN LIGHT OF THE SUPREME COURT’S HOLDINGS IN MARYLAND V. SHATZER AND BERGHUIS V. THOMPKINS

The Shatzer Court held that a fourteen-day break in custody will end the Edwards presumption that police-initiated custodial interrogation after a suspect invoked his right to counsel is involuntary. The Shatzer Court also held that when an interrogated suspect who is being held in incarceration due to a prior conviction is released back to the general prison population, this constitutes a break in custody with regard to the termination of the Edwards protection discussed above. Together, the holdings of the Shatzer case should be applied to revise MRE 305(e)(3)(A), which sets forth the military rule for interrogation of an accused or suspect who requests counsel and who is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom in any way.

(Note: this is the military Vaughters Rule. United States v. Vaughters, 44 M.J. 377, 378 (C.A.A.F. 1996) (custodial interrogation may be reinitiated without counsel being present where a suspect is provided a meaningful opportunity to consult with counsel, and subsequently waives his right to counsel). Note further that in Vaughters CMA said a 19 day lapse was fine.)

In Berghuis v. Thompkins, the Supreme Court held that a suspect who has properly received and understood the Miranda warnings waives the right to remain silent by making an uncoerced statement to the police without invoking the Miranda rights. Moreover, the Thompkins Court held that the police are not required to obtain a waiver from a suspect of his or her right to remain silent before commencing interrogation. Applying the holdings of the Thompkins case, MRE 305(c)(4), that states the military rule concerning the exercise of the privilege against self-incrimination and the right to counsel, as well as MRE 305(e), that provides the military rule regarding an accused’s or suspect’s waiver of the rights provided under MRE 301 and MRE 305, should be revised.

Because the trial counsel routinely failed in their requirements, I got in the habit of asking the CW during my interview if they “knew what was going on?” They’d say “no, not really.” I would then take the opportunity to tell them what was going on. I would tell them that I was the defense counsel telling them this and they are welcome to confirm with the trial counsel. At that moment the interview had some lessened tension. In several cases I’m convinced that my “helping” the CW understand what was going caused her to modulate anger against my client and it may have helped later. So now that’s a lost opportunity.

I do have some concerns about the potential for SVC’s exceeding the scope of their responsibility to their client and the court. Whether or not those concerns are supported will be open to discussion for some time to come. There is a potential concern for coaching as opposed to preparing a CW for testimony. Trial and defense counsel prepare but don’t (shouldn’t) coach a witness. It’s perfectly proper to prepare for testifying. In one particular case I was concerned about a SVC who objected to questions unrelated to MRE 412 or 513 during an Article 32. That’s not their place or responsibility.

So I’m not sure the SVC program is in crisis. Are there modifications and clarifications that need to be made – yes. Are there some serious ethical issues to be resolved – yes. The biggest ethical questions that must be resolved include:

What is the SVC required to do under the following situations?

• The CW tells them something significantly contradictory to their statements to law enforcement or at a 32.
• The CW tells the SVC about information that if known to the trial counsel must be discovered under the Brady-trilogy. Is the CW sufficiently a party as the rules and practice seem to have constructed, that there is a discovery obligation.
• The SVC observes the CW make a statement on the witness stand which the SVC knows or reasonably believes to be false. Can the SVC condone such behavior and remain silent, or is there some ameliorative action the SVC is required to take in the interest of justice and as an officer of the court. Note, this is similar, very similar to issues faced by a defense counsel. Defense counsel get training on these issues and there is a fairly robust amount of case-law and discussion of counsel responsibility.

I would encourage the Services to jointly consider addressing these questions in their rules of professional responsibility.

The question of a crisis was raised in this blog post at CAAFLog.

The investigation is centered on allegations that an SVC instructed a victim she was advising in an active sexual assault case to destroy information on a personal cellphone that was relevant to the case, but may have reflected negatively on the victim, according to several sources in the Marine Corps’ legal community who are familiar with the case.

I doubt the attorney advised the client to destroy evidence or potential evidence. If there is a concern it likely lies elsewhere. Is the CW blaming it on her lawyer? Talk to a defense counsel about how it is not uncommon to have the client blame them for something, especially after trial, where there is no blame. The media report notes: “Victims’ legal counsel attorneys have been known to push for a case to go to trial against the recommendations of the prosecutor, the official said, and make demands that have no legal precedent or hold up a trial.”

• Expressing the CW’s desire is not improper.
• Seeking to create new legal precedent is not improper, that’s what defense counsel argue for all the time.

To the extent this program is a hydra-headed problem, blame Congress and the leadership. Now, here is my additional thought on the underlying issue in the media report.

In almost all sexual assault cases I’ve dealt with over the last 7-8 years, text messages, FB messages, emails, and other social media communications have played a significant part in the case. Law enforcement seems to routinely cherry-pick, often with the help of the CW what “evidence” they will preserve. They almost never take a forensic mirror image of the cellphone for example. This in my view is a failure to investigate and direct evidence of confirmation bias in work.

There is no reason law enforcement cannot take a forensic mirror image of the phone and then preserve it as evidence, without actually conducting an examination. Should the image become relevant, then the parties can get the judge to order a DFE if appropriate. This respects the CW’s privacy while at the same time preserving potential evidence at trial, and avoiding allegations of evidence spoliation. I would have thought prosecutors and SVC’s would have been all for it—they avoid the attack on the CW’s credibility! Duh!!!

I say this with the following experiences in now my last eight cases. In each case but one, the CW was allowed, with CID assistance to pick the texts to “preserve” through a screen print or photo of the screen. In six cases the CID did not take a forensic image of the cellphone. In five of the eight cases the cellphone became unavailable after the investigation was closed and before the 32 and our request for preservation or production of a DFE. Two were “dropped,” broken and needed to be traded, two others were dropped in the bathtub, and needed to be traded, and one was traded (in this case the witness never told CID or the prosecutor). So, I am concerned. Is there a pattern? Are the CW’s being told to “lose” their texts or phones? If this in fact presents a suspicious pattern who is doing the telling. Not the SVC, least I don’t think so. That would be extraordinarily stupid. I don’t think it’s law enforcement. Despite concerns of competence, I think this unlikely. That leaves Victim Advocates, SARC’s, and others sufficiently knowledgeable to make such a “recommendation.”

So, is there a conspiracy or a theory. Not sure yet. But, here is a non-conspiracy theory thought on what may be happening. (And this comes from thinking about the ‘one drink’ canard.)

I am thinking that it may be the result of VA’s and SARC’s advising CW’s about privacy. Somewhere in that process it is coming out as lose your phone, delete private messages, hide private messages. Something along those lines. That morphs in the CW’s mind. It’s kinda like the not-what-you-said-but-what-they-think-you-said.

So what I’m thinking is someone needs to do some really clear, direct, and hands-on training or retraining with VA’s and SARC’s. Law enforcement needs to routinely image the phone, but not examine it without written consent. The CW needs to know that they are subject to adverse action for destroying potential evidence, and that’s what a cellphone is.

To finalize, let me give you some entertainment on my mind.

• I have a video of a CW interview. The CW is accompanied by a VA chief warrant officer. During the interview the CID agent steps out. You can then see and hear the VA telling the CW what she needs to be telling about. On review it’s somewhat innocuous so I decided not to use that at trial. The funny part is that after about five minutes the CID agent opened the door and motions the VA over. You can then see the agent talking to the VA and the VA then turns several times to look up at the camera. Hello, you’re on candid camera.
• I have videos of CID conducting three interviews, two with the military SVC present. The third has the civilian and military SVC on it. Again the CID agent leaves the room. Hello you are on candid camera giving your client advice. In the first two military SVC interviews there are several places where the audience can see and hear the advice being given. In the third they are just gossiping. I decided not to bring this up at the 32, and maybe won’t at trial. But let me ask, is that a waiver of the attorney-client privilege.

1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001). Without this finding, there is no IAC even if there is an error, because there is no prejudice. However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error. There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion? No.

Do you have to raise every single motion the client asks you to? No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal? We know the MJ can hold such a hearing.

The Fourth Circuit declined to apply a parent-child privilege. In reaching this conclusion, the circuit noted: “No federal appellate court has recognized a parent-child privilege, and we decline to do so here.” In particular, the circuit noted that “Doe Jr. has not made a strong showing of need for the parent-child privilege, and ‘reason and experience’ do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed. R. Evid. 501.” Under Seal, _ F.3d at _ (citation omitted). In arriving at this decision, the circuit canvassed the cases that have considered the issue at the district court and circuit levels.

Thanks to federalevidence.com for bringing this to our attention. In addition to the Fourth, the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh federal circuits agree. Federal evidence review blog notes that district courts in Nevada, Connecticut, and Washington do seem to have recognized such a privilege. Regardless, a military accused and his parents should continue to exercise care in what discussions they have about an alleged offense. There may be a limited way to create privileged communications, but it is not under any sort of parent-child privilege. But these are matters to be discussed with the military defense lawyer first.